WARNING The court hearing this matter directs that the following notice 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:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.
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:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
DATE: 2024 09 05 COURT FILE No.: Central West – Brampton – 3111 998 23-Y3110105
BETWEEN:
HIS MAJESTY THE KING
— AND —
C.A., a young person
Before: Justice A. Neil Singh
Heard on: August 12 & 13, 2024 Reasons for Judgment released on: September 5, 2024
Counsel: Brennan Jackson............................................................................... counsel for the Crown Stephen Proudlove............................................................ counsel for the defendant C.A.
1C.A. stands charged with two counts of sexual assault. He is alleged to have sexually assaulted the complainant, N.W. on two separate occasions: once on an unspecified date in October 2022 and again on January 23, 2023.
2The trial of this matter commenced on August 12, 2024. The evidence was completed on that date. After submissions on August 13, 2024, the matter was adjourned to today’s date for the Court to deliberate and determine the appropriate verdict in this case.
3These are my reasons:
Summary of the Evidence
(1) N.W.
4N.W. is the complainant in this matter. She alleged that she was sexually assaulted on two occasions. At the time of her testimony, she was 16 years old. She testified via CCTV from a room within the Courthouse. Her testimony in this manner was consented to by all parties.
5N’s video statement to the Peel Regional Police Service was admitted for the truth of its contents after the Crown made an application pursuant to s.715.1 of the Criminal Code. The defence did not oppose this application. Regardless, I found that the statutory prerequisites for the admission of N’s video statement were met. Her video statement therefore forms a part of her viva voce evidence.
6N testified that she and C.A. met at the beginning of the 2022-2023 school year when they were both attending the same high school in Brampton as students. At some point, in early October 2022, their friendship became a boyfriend-girlfriend relationship. They dated for approximately a month before breaking up, although they kept “seeing” each other on and off until N disclosed the alleged sexual assault from January 2023 to her teacher.
7In cross-examination, N admitted that she knew C was seeing other girls but did not find out until after they broke up. She acknowledged that she came to learn about another girl that C was involved with, K. She advised that she found out about K approximately one week prior to the January 23, 2023, incident. N acknowledged that at the time she wanted to be in an exclusive relationship with C, and that she told him that.
8When speaking about their relationship generally, N conceded that they did not get along well during the relationship, they were petty and childish with one another. It was not a mature relationship. N agreed that she wanted to have a more serious relationship with C than he wanted to have with her. N testified that they broke up due to C crossing physical boundaries with her, including the October 2022 sexual assault.
9Through her viva voce evidence and her video statement, N made allegations of two separate sexual assaults against C. The first sexual assault allegedly occurred in October 2022 shortly after they started dating. The second sexual assault allegedly occurred on January 23, 2023, during a period where they were no longer in a relationship but were still “seeing” each other in the on-again, off-again period.
The October 2022 Incident
10N testified that in October 2022, she was sexually assaulted by C at an area just across the street from their school. The area was described as a 2–3-minute walk from the school where there were large rocks that people could sit on and hang out during school breaks (For the sake of simplicity, from hereon out this area will be referred to simply as the “Rocks”). In cross-examination, N admitted that this area was an open, very public area where ordinarily there would be other people populating the area.
11N testified that on the date in question there were 5-10 people present, including herself, C, and her friend “Ash.” She and C were sitting on a rock together. “Ash” was standing against the fence by the rocks but was only a few feet away from the couple.
12N testified that there was nothing unique about that day. She indicated that at some point she was sitting on C’s lap, but then got up to move and he grabbed her by the waist and aggressively pulled her back onto his lap. She did not want to be grabbed by the waist. In cross-examination, however, N conceded that there was no conflict that preceded her getting up from his lap. There was no anger, and nothing mean being said. When he pulled her back down, she conceded that while it was forceful, it was semi-normal behaviour between them, and that she “didn’t mind” it.
13Once seated back on his lap, N testified that C stuck his hand down the front of her pants and digitally penetrated her vagina. She testified that this occurred quickly. Although N stated the penetration lasted for a number of minutes, she was unsure exactly how long it went on for. When he did this, N was surprised and tried to push him away from her. She was initially unsuccessful in stopping the digital penetration from continuing. N testified that she told C “No” and to “Stop.” She was eventually able to remove his hand when she tried to push him off a second time. She got up, walked away from him, and went and stood next to “Ash.” Once lunch was over, they went back to class.
14In cross-examination, it was established that all the people present at the Rocks were within a relatively close physical proximity to C and N. It was in the middle of the afternoon, and although she didn’t have a present recollection of how busy the area was, N conceded that ordinarily, there would be other people using the path and parking lot immediately adjacent to the location of the rocks. She agreed that it was an open, very public area.
15When cross-examined about the digital penetration, N agreed that no other person present responded to what was happening between her and C. From her observations, no one present indicated seeing or hearing anything between her and C.
16Afterwards, C and N stayed together for a period of time prior to breaking up. They broke up a few weeks later. N believed she broke up with C. Despite the breakup, they kept seeing each other on and off after that.
The January 23, 2023, Incident
17N testified that a second incident occurred on January 23, 2023. It was a Monday and occurred during the school lunch break. The day prior, N and C arranged to go speak privately at a park near the school. The park was an approximately 6–7 minute walk from the school.
18The genesis of the anticipated conversation concerned a situation that was occurring between C, N and a third girl, K. N admitted that a few weeks earlier, she became aware that C had been seeing other girls after their breakup, but while they were still seeing each other.
19N advised that at the start of lunch she was upset about this situation. At lunch, C and N walked to the park together. Once at the park, they sat on a bench and discussed, among other things, the situation involving themselves and K. It was during this conversation that C told N that he wanted to choose her over K.
20N testified that C told N that he loved her and then he kissed her. She was ok with and consented to this kiss. After the kiss, N tried to go back to normal conversation, but she testified that C had other ideas. He was grabbing onto her waist, thighs, and breasts. He successfully put his hands up her shirt a few times. He undid her pants’ drawstring and tried to put his hand into her pants. C begged N multiple times to have sex with him.
21According to N, C told her that if she had sex with him, he’d kiss her. When this topic was covered in cross-examination, N was confronted with the fact that he had already been kissing her. Presumably, counsel was seeking to point out an absurdity in C saying he’d kiss N if she had sex with him when he had already been kissing her up to that point in time having not had sex with her. In response, and for the first time, N stated that C had actually stopped kissing her and told her that he wasn’t going to kiss her anymore unless she had sex with him.
22N was adamant that when C was putting his hands up her shirt, she told him “No” and to “stop”. She stated she was pushing him away. She stated that she spoke louder and more strongly when compared to her tone while testifying.
23Again, when C untied her pants, N said “no” and told him to “stop”. She testified that she told C that did not want to have sex with him and did not want him to touch her. She pushed him away and stood up.
24Afterwards, they both left. They walked away together. They walked back to the Rocks (the same location where the October 2022 incident is alleged to have occurred). When she got back to the Rocks, she was talking to her other friends that were there.
25N was adamant. She did not want to be grabbed by the waist, thighs, or breasts. N did not want C’s hand up her shirt. N did not consent to having her pants untied by the C.
26N stated that C was trying to have sex with her right then and there, at the park, in the middle of January, during the middle of the day.
27N testified that she ultimately disclosed the January 2023 incident to her teacher, a person by the name of “Jess”. It was a day or two after that final incident. N advised that she was close with her teacher and would sometimes go to her with things that happened in her life and relationship. She would confide in her. In cross-examination, she advised that when she made disclosure to Jess, she did not tell Jess about what happened in October.
28In cross-examination, N acknowledged that on night of this incident, she spoke directly with K. In this conversation, K acknowledged that she and C were dating and that they were still seeing each other, even though C told N he was going to stop seeing K. She also acknowledged that she found out that on the very next evening, C went out on a date with K.
N’s Memory
29N gave candid testimony about the sexual assault allegations against C. That being said, she admittedly struggled with recollecting certain aspects of her evidence. The following are some examples of areas where N’s memory failed her during examination-in-chief:
(1) Concerning the October 2022 incident, N did not remember if C said anything when he grabbed her to pull her into her lap in October 2022, nor did she remember what her first reaction to being grabbed and pulled into C’s lap was. N did not remember whether there was any conversation between C pulling her into his lap and penetrating her, nor does she recall the content of any such discussion. She did not remember who was present, other than “Ash,” nor did she remember whether “Ash” or anyone else reacted to C’s penetrating her in front of them. She did not remember what reaction C had, if any, to being pushed away from penetrating her, or when she told him “No” or to “Stop.” N did not remember if C said anything to her after she walked away from him. N did not remember when during the lunch break this occurred (beginning, end, or somewhere in between).
(2) With respect to the January 2023 incident N did not remember what she was saying initially when C started to grab her. She does not remember what, if anything C said at this time. N did not remember what C’s face looked like when he was asking for sex. Afterwards, when she went back to the Rocks, N does not remember if she outwardly showed or expressed that she was overwhelmed, or whether she kept what had just happened to herself. She does not remember speaking about what happened when she walked with C to the Rocks from the park. When she got to the Rocks, she did not remember who she was speaking to.
30In cross-examination, N demonstrated similar frailties:
(1) N confirmed she did not know who was at the Rocks when she was sexually assaulted in October 2022. She did not remember whether she said anything when C initially put his hand down her pants, nor does she remember if anyone else acted as if they saw anything. She confirmed that she didn’t remember if anyone said anything or did anything to indicate that they saw the sexual assault. After the sexual assault, N did not remember whether C walked over to “Ash’s” location with her, she does not remember anything C was doing at the time, she does not remember him saying anything at the time, she does not remember saying anything to C at the time, she does not remember anything said to anyone at that time.
(2) After the January 2023 sexual assault, N does not remember who was at the Rocks when they walked back there. She does not remember talking to anyone at the Rocks. While mad at C, she does not remember saying anything to him about it. She does not remember whether she argued with him about what had happened.
(3) Further, she did not remember much of what she said to the investigating officers and acknowledged her memory issues on several points. For instance, she did not remember whether she told DC Reis that an incident with C occurred on school property during approximately the 3rd week of school. She did not recall speaking with Officer Tahir. She also could not remember whether she told any officer that C penetrated her vagina with his finger, and it ended when he just walked away.
(4) N did not remember if she received a text from C when he was on his date with K. She did not remember if C said he felt guilty about being on the date. She did not remember if he indicated he wasn’t sure about what he wanted to do about their relationship.
31I will note, however, that N definitively denied various suggestions put to her by Mr. Proudlove during cross-examination. She denied telling DC Reis that the first incident occurred in the school parking lot. She denied telling Officer Tahir that C started to undo her pants but stopped. She denied telling any officer that she did not want C charged, or that she did not want to report these incidents to the police. She denied telling Officer Tahir that “this” all began when she ended her relationship with C because he was involved with another girl.
(2) C.A.
32The defence called a single witness, C.A., to testify in his own defence. C’s evidence can best be described as a blanket denial. His evidence was not one where he asserted that there was consensual sexual contact between the parties, but rather, he maintained that the events did not happen. In other words, C’s position is that N fabricated the allegations.
33C testified that he met N at their high school shortly after the start of the school year. They started dating about a month after the school year started, sometime in October. C advised that they did not go on dates, nor did they spend time together outside of school. His relationship with N was his first in-person relationship.
34C described the relationship as immature. They got along sometimes, but other times they did not. They would argue about childish, immature things. C acknowledged that he was not the best boyfriend; he would start fights with N for no reason and behave childishly.
35The relationship lasted for a month, and they broke up afterward. While initially, C indicated that he didn’t remember why they broke up or who initiated it, in cross-examination, he conceded that it was because he had been crossing boundaries with N. C denied, however, that the boundaries he crossed were of a physical or sexual nature. C agreed that it was likely the case that N broke up with him.
36After they had broken up, C and N continued to see each other in an on-again, off-again fashion. During that period, he was also seeing other girls besides N. C testified that he told N that he was seeing other girls. He stated that she didn’t seem too happy about this.
37When asked about the two incidents N described in her evidence, C vehemently denied that either situation happened.
38Regarding the October incident, C agreed that he would spend time at the Rocks with N along with others. They would hang out there pretty much every day at lunch from 12 pm to 1 pm. He agreed that there would be anywhere from 5-10 students present at any given time. While they would hang out as a group, C acknowledged that sometimes people would have their own conversations and do their own thing within the larger group.
39C testified, however, that no one day stood out in his mind. In particular, he could think of no date where he could recall anything remotely similar to what N recollected in her testimony. C advised the Court that they would often sit together on the Rocks and hold hands. He agreed that sometimes he would pull her into his lap, but that it was not aggressive; nor was it something that N ever responded to negatively. C denied ever sticking his hand into N’s pants at the Rocks. C stated that he would have expected someone else to see that if he had done so. C denied ever putting his finger inside her vagina at the Rocks.
40With respect to the January 23, 2023, incident, C agreed that he and N went to the park as described by N in her testimony. They went to talk about a situation between them and K, the other girl C had been seeing at the time. Initially, C stated that from what he remembered, the conversation was friendly; however, his position on this changed. He denied telling N that he would stop seeing K. He had no recollection of telling N that he chose her over K. He remembered that N did not take this conversation well.
41In cross-examination on this area, C agreed that he and N argued at the park, but he could not tell the Court what they argued about. He agreed that he told N that he would be with her going forward, that they had kissed consensually on the bench, and said they loved each other. C further agreed that none of these activities would have led to any disagreement as between them. When pressed, C told the Court that the argument was about the fact that he was talking to another girl.
42C agreed that they were kissing on that day, but denied any of the other allegations save and except for allowing the possibility that he grabbed her by the waist. He denied sticking his hand up her shirt, untying her pant drawstrings and trying to put his hands down her pants, grabbing her thighs, or her breasts. He denied continually asking her to have sex then and there. As these things never happened, he denied N ever telling him to stop or pushing him away.
43In describing grabbing N by the waist, C stated that he did so in an affectionate way and not sexual. However, in cross-examination, C could not intimate the difference between affectionate touching and sexual touching. He agreed that when asked the question by his lawyer, he chose the term affectionate because the word sexual was associated with the charges he was facing.
44C denied ever telling N that he would pick her over K if she had sex with him. He denied ever telling her he would kiss her if she had sex with him.
45While C denied the allegations, he agreed that it would not be uncommon for him and N to engage in physical horseplay with one another. This would happen often, and it would happen in front of others.
46C recalled that shortly after the January 23, 2023, meeting at the park, he went on a date with K. While he was on the date, he felt guilty and texted N to tell her that he was with K. He advised that N got mad and stopped talking to him. It was shortly after that, in the days that followed that he was arrested and charged with the offences before the Court. C agreed that he gave N the impression that they would continue to see one another, but he did not think he told her he would stop seeing K.
C’s Memory
47Much like N, C’s memory had its limitations. His evidence was vague at times. He was unable to articulate particular things he and N would have argued about over their relationship. He described their arguments as “childish” without any specificity. He didn’t remember how or why they initially broke up, or who initiated the breakup; despite it being his first in-person relationship.
48Regarding the January 23, 2023, incident, C remembered that day and going to the park with N, but he testified that he didn’t remember the conversation. He didn’t recall whether he told her he loved her, but admitted it was something he’d likely say. He could not recall where in the park the bench was located, simply describing it as being in an open area. After going back to school, he didn’t remember any further conversations he had with N that day.
The Law
The Presumption of Innocence
49Section 11(d) of the Canadian Charter of Rights and Freedoms mandates that everyone in this country charged with an offence, is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
50C.A. is presumed innocent. The presumption of innocence is of fundamental importance in the criminal justice system. In this case, the presumption of innocence remains with C throughout the criminal process. It is only set aside if, and when, the Crown has proven the case against him beyond all reasonable doubt. This obligation rests with the Crown and the Crown alone to prove each essential element of each charge before the Court. C is under no obligation to prove anything.
Proof Beyond a Reasonable Doubt
51Proof beyond a reasonable doubt is also a fundamentally important principle of our criminal justice system. By placing the burden of proof on the Crown in a criminal trial, it operates alongside the presumption of innocence to protect against wrongful convictions.
52Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is neither imaginary nor frivolous. Fanciful doubts matter not. It is a doubt based on reason and common sense. It is logically derived from the evidence or absence thereof.
53Our Courts recognize that proof to an absolute certainty is an impossibly high standard to hold the Crown to. Guilt that is more likely than not, however, is insufficient for the Crown to have discharged its high burden. Proof beyond a reasonable doubt falls much closer on the spectrum to absolute certainty than to proof on a balance of probabilities.
54Our courts have instructed our juries and trial judges repeatedly that to convict a person of an offence for which they have been charged, the Court must be “sure” that the defendant committed the offence. If the Court is not “sure,” an acquittal must follow.
Sexual Assault
55The actus reus of sexual assault comprises three elements; (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent (see R. v. Ewanchuk, [1999] 1 SCR 330 at para. 25; R v. J.A., 2011 SCC 28 at para. 23; R v. Barton, 2019 SCC 33, 2019 2 SCR 579 at para 87; R v. G.F., 2021 SCC 20, 2021 1 SCR 801 at para 25).
56The mens rea of sexual assault comprises two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to a lack of consent on the part of the person touched (R v. Ewanchuk at para 42; Barton at para 87; R v. Kirkpatrick, 2022 SCC 33).
57It is abundantly clear, based upon the way that this trial was conducted, that if the Court is satisfied at the end of its deliberations that either of the acts complained of by N occurred, a finding of guilt must flow on the relevant counts.
Reliability & Credibility
58In this case, N testified and asserted that C sexually assaulted her. C testified in his own defence denying the allegations. The outcome of this trial will therefore be determined through the assessment of the reliability and credibility of the two young witnesses in this case.
59Credibility and reliability are related, but different. Reliability is about whether a witness is testifying accurately. Credibility is about whether the witness is testifying honestly. In assessing a witness’ reliability, the Court must assess whether the witness had the ability to accurately observe the events in question, accurately recall or remember later what happened and accurately explain what happened during the events in question when the witness comes to court to testify (see R. v. R.S., 2024 ONSC 4248 at paras 12 & 13).
60In assessing the credibility of a witness’ evidence, the Court takes instruction from R v. W.(D.), [1991] 1 SCR 742, where the Supreme Court of Canada laid out the formula to be applied in circumstances such as the one before me:
(1) First, if you believe the evidence of the accused, obviously you must acquit.
(2) Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.
(3) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
61In his recent decision of R v. C.G., 2024 ONSC 4253, Justice Mirza sitting in the Superior Court of Justice in this building provided a comprehensive review of the law surrounding the assessment of credibility. I can do no better than to quote Justice Mirza’s eloquence directly:
172 The W. (D.) analysis is a useful framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests. R. v. J.H.S., 2008 SCC 30, and R. v. C.L.Y., 2008 SCC 2.
173 In applying the W. (D.) methodology, I am mindful of the following additional guidance in the caselaw. First, the W. (D.) methodology applies not only to instances where the defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown's case, for example, a Crown witness provides evidence in support of the Defence. R. v. B.D., 2011 ONCA 51, at para. 105.
174 Second, in considering the first two steps of the W. (D.) analysis, the evidence of the accused must be considered in the context of the evidence as a whole, including the complainant's and other witness evidence. In other words, the assessment is not simply whether the accused's evidence standing alone and without context is believed or leaves a reasonable doubt. See: R. v. Carrière (2001), 159 C.C.C. (3d) 51 (Ont. C.A.) at para. 51, R. v. Hull, and R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.).
175 Third, the second step of the W. (D.) analysis is important. It emphasizes the point that credibility assessments in a criminal case are not dichotomous. There is a third alternative between complete acceptance and complete rejection of the accused's evidence that can ground a reasonable doubt. R. v. J.E., 2012 ONSC 3373, at para. 20; R. v. J.M., 2018 ONSC 344, at paras. 9-20.
176 When assessing credibility, there is no formula that applies in determining whether a witness is telling the truth. Instead, the witness' evidence is considered by using a common-sense approach that is not tainted by myth, stereotype, sympathy, or assumption.
177 There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness' evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying.
178 Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I must decide whether the witnesses told the truth and if so, whether their evidence can be relied upon as accurate.
179 However, and to be clear, this case is not a credibility contest.
180 The issue is not whose evidence I prefer. Rather, the issue is whether the Crown has proven the case against the accused, on each charge, beyond a reasonable doubt. In making this determination I can accept some, none, or all of any witness' evidence. I may find that even though I prefer the evidence of a Crown witness on some points over the evidence of or supporting the accused, I am left with a reasonable doubt about guilt.
181 As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.
182 The accused has no obligation to establish that the complainant has a motive to fabricate or lie or that they were biased. A complainant may accuse a person of committing a crime for reasons that may never be known, or for no reason at all.
183 Lack of embellishment may be considered in response to suggestions the complainant has a motive to lie. However, it is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. R. v. Alisaleh, 2020 ONCA 597.
184 It is wrong to reason that because an allegation was not exaggerated or could have been worse, it is more likely to be true. R. v. Kiss, 2018 ONCA 184 at para. 52, citing R. v. G.(G.) (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at p. 10; R. v. L.L., 2014 ONCA 892, at para. 2; and R. v. G. (R.), 2008 ONCA 829, at para. 20.
185 As Paciocco J.A. stated in Kiss at para. 52, demeanour evidence has to be considered carefully as emotion or lack thereof is not a proxy for either truthfulness or dishonesty.
R v CG, 2024 ONSC 4253 at paras 172-185
Myths and Stereotypes in Sexual Assault Cases
62Reliance on myths and stereotypes about sexual assault complainants is an error of law. The Supreme Court of Canada in its recent decision in R v. Kruk, 2024 SCC 7 said the following about myths and stereotypes regarding sexual assault complainants:
37 Myths and stereotypes about sexual assault complainants capture widely held ideas and beliefs that are not empirically true -- such as the now-discredited notions that sexual offences are usually committed by strangers to the victim or that false allegations for such crimes are more likely than for other offences. Myths, in particular, convey traditional stories and worldviews about what, in the eyes of some, constitutes "real" sexual violence and what does not. Some myths involve the wholesale discrediting of women's truthfulness and reliability, while others conceptualize an idealized victim and her features and actions before, during, and after an assault. Historically, all such myths and stereotypes were reflected in evidentiary rules that only governed the testimony of sexual assault complainants and invariably worked to demean and diminish their status in court.
63The Supreme Court in Kruk provided further guidance on myths and stereotypes.
(1) Myths and stereotypes against complainants are assumptions and notions that for a long time were both widely held and reflected in particular legal rules. Myths and stereotypes prevent the fair assessment of a discrete category of witness testimony in a particular subset of criminal trials, complainants in sexual assault cases.
(2) Reliance on myths and stereotypes about complainant’s distorts the elements of the offence sexual assault and, specifically, the now clear definition of consent as the voluntary, communicated, agreement to the sexual activity in question.
(3) All kinds of ungrounded assumptions about human behaviour, including stereotypes, share two characteristics. First, they take a general proposition and apply it to a specific individual, foregoing any assessment of that person’s unique characteristics or circumstances. Second, the general proposition is inaccurate or untrue, either in all cases or as applied to that specific individual. However, stereotyping goes one step further and connotes a particular legal meaning that merely generalizing does not: specifically, a meaning rooted in discrimination and inequality of treatment.
64With respect to how a victim of a sexual assault behaves, the Ontario Court of Appeal recently said the following in R v. Varghese, 2024 ONCA 555 at paragraphs 35 & 36:
35 A persistent myth is that a victim of a sexual assault will necessarily resist, fight, or attempt to get away from their assailant. We now recognize that these are false assumptions. As the trial judge acknowledged elsewhere in her reasons, there is no right way for a victim of sexual violence to behave after the fact… Despite this, discredited myths and stereotypes endure about how a sexual assault victim should behave, often masked in “common sense” language.
36 Reliance on discredited stereotypes and prejudicial reasoning in assessing a complainant’s credibility is an error of law.
65It is incumbent upon this Court to protect against any reliance on unfounded myths and stereotypes when assessing the evidence in this case.
Positions of the Parties
Crown
66Mr. Jackson on behalf of the Crown submits that the Crown has proven its case beyond all reasonable doubt. He submits that a finding of guilt on both counts must follow. He urges this Court to accept the evidence of N and reject the evidence of C.
67In attacking C’s evidence, Mr. Jackson points to three areas upon which he says the Court should rely in rejecting his evidence.
(1) First, the Crown submits that C was not entirely forthcoming on the witness stand and self-serving in his descriptions of what happened. For example, C described grabbing N by the waist as affectionate as opposed to sexual, however, he could not articulate the difference between the two terms. He further agreed that he chose the term"affectionate", to distance himself from the sexual option that was put towards him.
(2) Second, in accepting there was an argument on January 23, 2023, C could not provide any particular details about it. The Crown submits that C’s evidence, if believed, demonstrated a friendly engagement between the two parties, one where an argument would not have occurred. The Crown further submits that his lack of detail regarding this incident is different from the October incident due to its proximity in time to his arrest. The Crown submits that surely, he would have remembered the details.
(3) Third, the Crown submits that C was inconsistent and shaky on the reasons for the breakup between himself and N. Initially, he did not recall the cause of the breakup or who initiated it. Later, he accepted it was because he crossed boundaries with N. C stated that he crossed boundaries by being mean and seeing other girls. The Crown, however, points out that N never knew about other girls until after the breakup.
68Conversely and unsurprisingly, the Crown submits that N’s evidence should be believed and accepted. Mr. Jackson points to three areas upon which he says the Court should rely in accepting her evidence.
(1) First, she was not impeached on any inconsistencies with prior statements considering the defence submission that she was fabricating the allegations.
(2) Second, her evidence was not inconsistent with the external factors that the defence pointed to in submitting that the allegations happening as she testified was simply implausible.
(3) Third, any motive to fabricate the allegations does not accord with who N went to when she disclosed the sexual assaults. The Crown submits that if N wanted to get C in trouble out of spite or vengeance she would not have gone to her teacher. Further, the fact that N testified that her teacher told her she was obligated to report the allegations leads to an inference that N was not looking to get C into trouble.
Defence
69Mr. Proudlove, on behalf of C submits that N’s evidence should be rejected because it does not warrant belief. Mr. Proudlove points to the following factors in urging the Court to reject her evidence:
(1) First, the October 2022 incident occurred in close physical proximity to other people at the Rocks. That a serious, protracted, physically invasive sexual assault would have taken place within reaching distance of a group of other people is simply not deserving of belief. Surely, someone would have seen this.
(2) Second, the January 2023 occurring as the complainant stated, in the middle of the day, during the frigidity of a GTA of winter, in an open area, within view of the public is not believable. Mr. Proudlove submits that the two undressing and having sex in the middle of winter and having intercourse is incredulous. The extrinsic circumstances offset the likelihood that this occurred.
(3) Third, N had a motive to lie. Mr. Proudlove conceded that the thrust of N’s evidence was not crippled in cross-examination, and that she essentially maintained her version of events as told in her video statement. Mr. Proudlove submits, however, that her motive to fabricate the allegations impairs her credibility to such a degree that she is not worthy of belief. It was clear that she was more invested in the relationship than C and was eager to reunite with him. N was upset that C was seeing K and wanted him to be with her exclusively. She was upset when she found out that he was on a date with K after he had told her he wanted to be with her. Upon N discovering that C was still seeing K, she immediately broke off all contact with C and disclosed the sexual assault to her teacher the next day.
70Conversely and again unsurprisingly, Mr. Proudlove urges this Court to accept the evidence of C. He submits that C’s evidence should raise a reasonable doubt. C testified in a straightforward and honest manner. He made no effort to deceive the Court and answered questions as best he possibly could. He made admissions against his interest that might make him look less than perfect, like treating N poorly and seeing other people behind her back. In other words, he did not go out of his way to make himself seem like a saint. In the face of these admissions and an able cross-examination, he remained steadfast that the sexual assaults did not occur, and he was not shaken on that.
Analysis & Findings
Evidence Not Relied Upon in Coming to a Decision
71There were certain areas of evidence and submissions during this trial that this Court was urged to rely upon. On reflection, I have determined that it would be improper, and an error, to place any reliance on the following:
(1) With respect to the October 2022 incident, I find that it would be an error to accept that the external circumstances as described by the witnesses make it unbelievable that a sexual assault could or would have (i) occurred; and (ii) occurred without detection. There is evidence that attending the Rocks was a common occurrence amongst the parties and their friends. There is evidence that C and N often engaged in physical horseplay. There is further evidence that interactions within this group did not always occur with the participation of everyone within the group. There would often be people engaged in separate interactions within the group that might not necessarily come to the attention of others. It is entirely plausible that this occurred in the presence of others (i) without attracting their attention; or (ii) while attracting their attention but without them doing or saying anything about it.
(2) Similarly, regarding the January 2023 incident, I find that it would be an error to accept that the external circumstances as described by the witnesses make it unbelievable that a sexual assault could or would have occurred. The fact that this is alleged to have taken place in an open space frequented the public-at-large, in the middle of the day, during the frigidity of our winters, and after completely disrobing, does not negate the possibility that this might occur. As Mr. Jackson ably submitted, there is no location or climate immune to sexual offences. Despite Mr. Proudlove’s able submissions on this point, I do not accept them. First, there is no evidence that there was a plan to completely disrobe before having sex. Further, sexual crimes are inherently illogical acts. The logical thoughts of what the “reasonable person” would do in these specific circumstances is unhelpful to this Court’s analysis. It is entirely plausible that a sexual assault could occur in these circumstances as described by the complainant.
(3) Third, I do not accept the submission that the veracity of the October 2022 incident should be called into question due to N’s desire to reunite with C and want to be in an exclusive relationship with him in the weeks and months that followed. The law is trite, there is no pro forma way in which victims act. In accepting this submission, the Court would be relying on forbidden myths and stereotypes. The reality is, as is clear from our collective experience, that victims of intimate partner violence often want to return and reunite with their abuser, and indeed do in some relationships.
(4) Fourth, I place no reliance or weight on the fact that after the January 2023 incident, C and N walked away from the park and back to the Rocks together. To place any weight on this factor would again ask this Court to rely on impermissible myths and stereotypes on how N as a victim ought to have behaved had she just been sexually assaulted.
(5) Finally, I place no weight on the fact that N did not disclose the October incident to her teacher, “Jess” either shortly after it happened or when she ultimately disclosed it to her after the January incident. This is something I raised by way of a question with Mr. Jackson during his submissions as it was something I had been thinking about. Mr. Jackson submitted that I cannot place any reliance on this evidence. Mr. Jackson stated that there is no evidence that N told this teacher everything about her relationship with C, or that she would do so routinely, or immediately after things occurred. Upon reflection, I agree. Again, the law is clear, there is no pro forma manner of disclosure from sexual assault victims.
72To be clear, in coming to a decision in this matter, I have placed no weight or reliance on the five areas of evidence as detailed above.
N’s Evidence
73I find that N was a credible witness. Generally, she testified in a straightforward and forthright manner. She answered the questions asked of her. She was not combative in cross-examination. She made admissions against interest, including her purported motive to fabricate these allegations.
74N was not impeached in her testimony or on any prior inconsistent statement. She was unshaken in cross-examination. She was not internally inconsistent. She was not contradicted by any other independent evidence, only C’s evidence.
75As stated above, I do not find her evidence regarding the locations, attendance, timing, and circumstances of the sexual assaults to be implausible or to detract from her credibility in any way.
76Where I have concern is with her evidence that concerns her motive to fabricate. N agreed that she was upset about the situation involving K. She conceded that she wanted to be in a relationship with C. She wanted them to be exclusive. She agreed that she was upset about the situation. When asked, N remained steadfast that she was not jealous of C’s relationship with K. She maintained this position even when she found out about them being on a date after C told her that he would choose her, on his evidence. While I find this hard to believe, I cannot discount that she may not have been jealous, but rather hurt by C’s actions.
77Additionally, while I have concerns surrounding the timing of the allegations being made close-in-time to N’s discovery of the date between C and N, I cannot find that she fabricated these allegations. That the revelation may have been the proverbial “straw that broke the camel’s back” leading to the police involvement, it does not necessarily mean that these allegations were concocted. It simply means that they may not have been reported by N otherwise; no more, no less.
78After a comprehensive review of her credibility and reliability, I cannot reject N’s evidence.
C’s Evidence
79Similarly, I find that C was a credible witness. He too testified in a straightforward and forthright manner. He answered the questions asked of him and was not combative in cross-examination. Rather, he was conciliatory even where it didn’t serve his interests.
80That being said, his evidence was far from perfect. I agree, with Mr. Jackson that he did give self-serving evidence at some points. I find that he chose to describe grabbing N by the waist as affectionate, as opposed to sexual, as an opportunity to distance himself from the sexual nature of the allegations he was facing. Ultimately, this does not trouble me for the following reasons:
(1) First, in the question posed, he was given two choices to characterize the touching of the waist: affectionate or sexual. Perhaps I would view his answer differently had the question been asked without the limitations of a multiple-choice inquiry. Unfortunately, that is not the case, and I must deal with the evidentiary record as it stands.
(2) Second, given the two choices provided to him to characterize the touching, it is completely reasonable and understandable that a child, facing serious jeopardy, would choose the option that does not obviously incriminate himself. Let’s not forget, C denies all wrongdoing.
(3) Third, during the trial Crown counsel sought and had that portion of C’s testimony played back for him. It is clear that in his answer, there is a distinct upward inflection when he answers with “affectionate.” It is clear to me that he is unsure, and his answer is in the form of a question.
81I also agree with Mr. Jackson that C was vague and lacked detail regarding the source of the purported argument on January 23, 2023. This evidence too leaves me undisturbed. I have no evidence before me as to when C became aware of the particulars of the allegations before the Court. From a review of the information before the Court, we know that he was arrested on January 26, 2023. He was charged with two counts of sexual assault and released on an undertaking. His first appearance was in March 2023, approximately 1 ½ months after his arrest. C’s undertaking has no particulars regarding the charges, nor is there any evidence that any police officer, teacher, principal, or other person advised him of the specific allegations he was facing. It would be speculating to pinpoint when he became aware of the particulars, but it is certainly possible that it may have been months after the fact. In this context, it is not unsurprising (and perhaps understandable) that C may have had trouble recounting the specific details of the encounter on January 23, 2023.
82Nevertheless, C indicated in his evidence-in-chief that he does not believe he ever told N that he would stop seeing K. While he was challenged on other aspects of the meeting in the park in cross-examination, he was not challenged on this, and I accept this as a plausible source of the argument between them on that date.
83Finally, while C was inconsistent in the reasons for the breakup between him and N, the context of the relationship is important to consider. On the evidence of both witnesses, they dated for a month before breaking up. From there on, they continued to see each other in an on-again, off-again fashion. This suggests that although they may not have been exclusive, there was a cycle of multiple reconciliations followed by multiple breakdowns of sorts. Again, it is not unsurprising, nor is it unreasonable for C to be mistaken or confused as to the root cause of the breakup in these particular circumstances.
84C remained steadfast in his position. He did not sexually assault N in October 2022 or January 2023. The allegations were concocted by N. He was innocent.
85After a comprehensive review of his credibility and reliability, I cannot reject his evidence.
The General Reliability of the Witnesses’ Evidence
86This case is a cautionary tale regarding the frailties with the evidence of child witnesses. Both N and C had significant issues with their ability to recall events about what were no doubt, seminal moments in their young lives to that point. Their evidence was replete with instances where they simply were unable to recall specific details surrounding the events. While their inability to do so might detract from the overall reliability of their evidence, I find that it does not do so in any significant way. This Court finds the reliability of their evidence remains largely intact as their limitations in memory attached largely to peripheral matters. I find that both witnesses were doing their best to recall events. They are simply children whose minds are still developing as they navigate the difficult journey from childhood to adulthood.
Factual Findings
87As a result of this Court’s analysis, the Court makes the following findings of fact:
(1) C and N met at the start of the 2022-2023 school year while attending the same high school in Brampton.
(2) They were both in Grade 10. C was taking Grade 10 courses & N was taking Grade 9 courses.
(3) Shortly after meeting, they began to talk to one another and at some point, in the early stages of October 2022 they started dating.
(4) They would often spend time together at the Rocks, an area off school property where they, along with their friends, would hang out during lunch.
(5) They would often hold hands at the Rocks. Sometimes N would sit on C’s lap. It would not be uncommon for C to grab N by the waist and pull him into his lap. N did not mind this.
(6) At some point, approximately a month after they started dating, N broke up with C. She broke up with him because he was crossing boundaries with her.
(7) Despite the breakup, they continued to see each other in an on-again, off-again fashion. During this time, C was seeing at least one other person, someone named K.
(8) At some point before January 23, 2023, N became aware that C was seeing K. K was hoping to rekindle her relationship with C. She wanted to be exclusive with C.
(9) A meeting between the two to speak in person privately was arranged for January 23, 2023. They went to a park during lunch, approximately a 6–7-minute walk from their school. They sat on a park bench and discussed the situation. C told N that he wanted to continue to see her. There was an argument between them at the park. After their meeting, they walked to the Rocks together and parted ways shortly afterward.
(10) Either that night or a day or two later, C was on a date with K and felt guilty. He messaged N and told her that he was on the date. N got upset and ceased all communications with C.
(11) The next day, N disclosed the January 23, 2023, sexual assault allegation to her teacher, “Jess,” a person she felt close and comfortable to, and would confide in from time to time.
(12) On January 26, 2023, C was arrested by the Peel Regional Police Service and charged with two counts of sexual assault. He was released on an undertaking.
88The Court is however unable to make the following findings of fact:
(1) That the boundaries C was crossing were physical as stated by N as opposed to emotional as stated by C.
(2) That any sexual assault occurred in October 2022.
(3) That any sexual assault occurred on January 23, 2023.
89While N was a credible witness, so was C. Her evidence and his denial leave this Court in a state of uncertainty as to what happened. Ultimately, I simply cannot reject C’s credible denial.
Conclusion
90When it comes to whether these sexual assaults occurred, I simply do not know what happened. I am unable to reject either party’s evidence. When applying the W.(D.) framework, I am left in a state of reasonable doubt (See R v. C.G., supra at para 181).
91It would, therefore, be unsafe to convict C in these circumstances. He is entitled to an acquittal. All charges against him will be noted as dismissed.
92In coming to this conclusion, I want to be clear that I am not making a factual finding that these sexual assaults did not occur. They may very well have, and while I may have my suspicions, that is not sufficient for a finding of guilt. I simply do not have enough evidence before me to say that the Crown has discharged its very high burden of proof by dispelling all reasonable doubt.
93The Court must always protect our society from the threat of wrongful convictions. A conviction on the record before this Court would threaten just that.
94C, when this trial started you had with you the presumption of innocence. Throughout the trial, the presumption of innocence remained with you. Today, when you leave this Courtroom with your mom and dad, alongside the three of you will be your presumption of innocence. You will be found not guilty. You are free to go.
Released: September 5, 2024 Signed: Justice A. Neil Singh