WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. M.C., 2024 ONCJ 597
DATE: 2024 10 03
COURT FILE No.: Central West Region - Brampton – 22-31101494
BETWEEN:
HIS MAJESTY THE KING
— AND —
MC
Before Justice Andrew F. Falls
Heard on April 22-25, 2024
Oral Reasons for Judgment released on May 29, 2024
Written Decision released October 3, 2024
R. Mushlian.......................................................................................... counsel for the Crown
A. Valencia............................................................................ counsel for the defendant, MC
Table of Contents
Introduction.. 3
Applicable Legal Principles. 4
TS was a Credible Witness Who Gave Reliable Evidence. 5
The Defence Evidence. 6
MC.. 7
MC’s Wife. 10
NC.. 10
The Neighbour, GP.. 11
Assessment of the Defence Evidence. 12
Conclusion. 13
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. If the WARNING page at the start of this document is missing, please contact the court office.
Falls, J.:
Introduction
[1] MC is before the court charged with sexual assault, sexual interference and sexual invitation. The Crown alleges that MC hugged and kissed a young girl named T.S. Shortly thereafter, it is alleged that MC forced TS to touch his exposed penis.
[2] During submissions both parties focused on the credibility and reliability of the witnesses.
[3] There is no issue that on TS’s account of the events, the offences as charged are legally made out. That is to say the material elements of the offence would be established. If the Crown has proven there was touching as alleged, MC should be found guilty.
[4] The sole Crown witness was TS. At the time she testified, TS was 13 years old. She was a former friend of MC’s daughter, NC. The two girls had been friends since early elementary school.
[5] TS testified that, while at MC’s residence to pick up his daughter, MC exposed his penis and placed TS’s hand on it. I found TS’s evidence to be entirely credible and I accept her evidence as facts in this trial.
[6] MC, two family members and a neighbour testified on his behalf. Viewed collectively their evidence amounted to a denial of the allegations supported by evidence tending to show the improbability of this event occurring. I have some credibility concerns about the defence evidence as a whole, and particularly with respect to MC and the neighbour, GP. Though the defence evidence raises a narrative that narrows the window for this offence to have occurred, I find that MC had an opportunity to commit this offence. I found MC’s evidence to be lacking credibility. It did not leave me with a reasonable doubt. Nor did the evidence in this trial otherwise leave me with a doubt about what occurred on June 1st, 2022.
[7] As is the case with many sexual assault criminal trials, the primary focus is on the credibility and reliability of the two central witnesses – the complainant and the defendant. The Crown must prove each element of each offence beyond a reasonable doubt.
[8] I find that the Crown has proven MC’s guilt beyond a reasonable doubt. For reasons to follow, MC is found guilty of all three counts on the information.
Applicable Legal Principles
[9] The case against MC depends on my assessment of both the credibility and reliability of the witnesses who testified.
[10] Accordingly, the principles in R. v. W (D)[^1] are applicable.
[11] If I believe MC’s evidence, I must find him not guilty.
[12] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.
[13] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
[14] I must keep in mind that MC, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. The mere probability or likelihood of guilt is not sufficient for proof beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".[^2]
[15] Reasonable doubt is based on "reason and common sense," is not "imaginary or frivolous," does not "involve proof to an absolute certainty," and must be "logically connected to the evidence or absence of evidence."[^3].
[16] The reasonable doubt standard applies to the final determination of guilt or innocence - it is not applied piecemeal to individual pieces of evidence or categories of evidence[^4].
[17] Additionally, I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether they are speaking the truth as they believe it to be. Reliability relates to the accuracy of their testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence[^5]. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.[^6]
[18] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record.[^7] The credibility and reliability of a witness must be "tested in the light of all the other evidence presented"[^8].
[19] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.
[20] I have instructed myself to avoid an “either/or” approach in choosing between the competing versions of the defendant and the complainant and have adhered to the approach mandated by W(D) to consider all of the evidence and to ensure that the presumption of innocence is not displaced in the absence of proof beyond a reasonable doubt.
[21] Our law recognizes that there is no model of expected behaviour by a victim of sexual assault against which to measure the behaviour of a complainant of sexual assault[^9].
[22] Finally, in assessing a witness’s evidence, I am entitled to believe all, none, or some of their testimony.[^10]
TS was a Credible Witness Who Gave Reliable Evidence
[23] I now turn to my assessment of TS’s evidence. TS was 13 years old at the time she testified. She was in grade eight.
[24] Her evidence was comprised of a videotaped statement provided to the police on June 3rd, 2022 and her oral testimony in chief and cross examination. Her videotaped statement was admitted into evidence pursuant to s. 715.1 of the Criminal Code of Canada.
[25] I find TS’s evidence to be completely credible. She was a candid and forthright witness that gave her evidence in a manner that demonstrated to me that she was recalling the events that occurred on June 1st, 2022. Testifying from her own experience, TS provided powerful evidence of the incident with MC.
[26] Her evidence was detailed and lacked any embellishment. TS had clear recollections of her activities from the moment of her arrival at MC’s residence until the time she left. Both in her videotaped statement and in oral testimony, TS recalled specific details. For example, she recalled her arrival time. She recalled standing next to the basement lights and the lights shining in her eyes. TS recalled being asked why her eyes were closed. TS recalled the sensation of being held tight enough that she could not push MC away. She recalled hearing MC remove his penis from his pants.
[27] Her evidence was not seriously challenged in cross-examination. I struggled to find and, indeed, make a finding that there were no meaningful inconsistencies in her evidence.
[28] Counsel for MC argued that TS had a motive to fabricate the allegations. TS was angry at MC for telling her mother that she was rude to him on an earlier occasion. MC testified that TS’s mother made her apologize. From that moment forward, TS’s attitude towards MC changed. Respectfully, I do not agree. The evidence does not support counsel’s contention regarding the alleged motive. TS was questioned about this incident and her subsequent feelings toward MC. TS had no memory of the event occurring. I found her evidence on this particularly genuine. TS had troubles understanding the suggested motive because the event was of no importance to her.
[29] I accept the whole of TS’s evidence. I find that she attended MC’s residence during the morning of June 1st, 2022. It was a normal occurrence for her to stop and pickup NC so the two could walk to school. The two girls were in grade six, approximately 11 years old.
[30] TS entered the residence and found NC not ready to leave. While waiting TS attended the basement to feed a pet bunny.
[31] I accept her evidence that MC descended into the basement while TS was visiting the bunny.
[32] MC approached TS. He hugged her and kissed her on the lips. TS closed her eyes. MC removed his penis from his pants exposing himself to TS.
[33] I find that MC asked TS to touch his penis. He asked if she wanted to “squeeze it”. TS verbally expressed a refusal to do so. She told him NO. MC grabbed her wrist and forced TS to touch his penis. He moved TS’s hand on his penis. MC continued to kiss TS as he made her touch his penis. There was no evidence that MC ejaculated.
[34] I accept and find that this incident was relatively brief, lasting approximately one to four minutes.
[35] After the incident, TS attended the basement washroom to wash her hands. Though there was nothing on her hands, TS washed because she felt disgusted. She used a “whole lot of soap”. TS then went upstairs. She left with NC and walked to school.
[36] That day, June 1st, TS sent an electronic message to NC advising of the incident.
[37] The incident was reported to the police. And, as I noted, TS provided a videotaped statement to the police two days after the incident.
[38] I have no doubt about TS’s credibility and find her testimony to be entirely believable.
The Defence Evidence
[39] I now turn to an assessment of the defence evidence. I will address the defence evidence together due to the nature in which it was presented. Though I have also considered each witness’s evidence individually in light of all the evidence in this trial.
[40] The defence called four witnesses to advance an overall narrative that this incident could not have happened. It was argued that piecing the witness evidence together should lead me to conclude that the events could not have occurred due to the improbability of MC being alone with TS.
[41] The defence called MC, his wife, daughter, NC, and a neighbour, GP. Each witness provided evidence of MC’s whereabouts on the morning of June 1st, 2022.
MC
[42] The case against MC depends on my assessment of him as a witness.
[43] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.[^11]
[44] MC, self-employed as an IT consultant, was the last witness to testify for the defence.
[45] MC’s evidence amounted to a categorical denial of wrongdoing. I pause to note that there is nothing inherently implausible about a briefly stated denial of responsibility, given the primacy of the presumption of innocence. A patent denial of wrongdoing might be true. MC also spent a considerable amount of time in his evidence distancing himself from any opportunity to commit this offence. He denied any form of contact or communication whatsoever.
[46] In assessing MC’s evidence, I must fairly evaluate his evidence as a whole, in the context of the totality of evidence at this trial, and not in isolation. I must scrutinize his evidence with an open mind and in the same manner and to the same degree used for the testimony of other witnesses, particularly TS, in order to avoid the error of uneven scrutiny[^12].
[47] After applying these principles to the defendant’s evidence, I conclude that I do not believe MC’s denial of wrongdoing, nor does it leave me with a reasonable doubt as to his guilt.
[48] I found MC’s evidence to be flawed by both internal and external inconsistencies, evasiveness, as well as exaggeration. After considering all of the evidence and in the final analysis, I did not consider him to be a credible or reliable witness.
[49] The following are examples of inconsistencies or problems I found in the evidence of MC. These are presented in no particular order of importance. I have considered them collectively in any event. I also point out that I am relying on these in determining both the credibility and the reliability of his evidence.
[50] As I noted, MC strained to distance himself from any contact with TS. He was careful to mention that he did not speak with her. He did not touch her. He did not shake her hand. He did not hug her. No contact at all, not even for a cordial greeting when TS arrived. I cannot accept MC’s evidence that he had virtually nothing whatsoever to do with TS and did not utter a single word to her for the duration of her visit in his house.
[51] In cross-examination, MC effectively doubled down on his assertion that he did not have contact with TS by suggesting that, in the seven years he has known TS, he has never spoken with her in the absence of his family.
[52] I found his evidence in this regard to be contrived and incredible. It did not make sense to me why MC would take no interest, not even an innocent interest, in TS’s arrival at the residence. To me, MC provided this evidence to purposely avoid any consideration from a trier of fact of the possibility an offence could have occurred.
[53] In support of why he could not have committed this offence, MC testified that his allergies prohibited him from going near the family’s pet rabbit. To lend support to the existence of his allergy, MC tendered into evidence a medical prescription. I note the prescription is dated seven days before the commencement of this trial on April 15, 2024. I accept that MC does not have to present corroboration for me to accept his evidence. I remind myself not to infect my reasoning with this requirement. However, in assessing MC’s credibility, when he did elect to present corroborative evidence, I struggle to understand why he presented evidence that may corroborate an allergy at the time of trial, almost two years after the commission of this offence. MC’s evidence on this point was that he received an allergy test earlier in 2024. Based on the results of that test, he was prescribed three forms of medication for his allergies.
[54] MC presented a video recording of his wife descending into the basement. He testified that it is impossible to go down the stairs without a sound. I reviewed this video many times in considering this evidence. The sound of the stairs played an important part of both MC and his daughter’s evidence. At full volume, aside from the sound of MC’s wife’s pink shoes as they hit each step, I struggled to hear any creak or squeak of the stairs. If I were to be generous, perhaps a faint “creak” on the first step from the top and a “squeak” on the bottom step. In my view, this is far from a conclusion that the stairs are noisy enough to carry sounds throughout the residence as described by the witnesses. I note MC testified that TS took her shoes off at the front of the residence.
[55] In cross-examination, MC reluctantly conceded that the stairs were not as “squeaky” as suggested.
[56] The suggestion of loud stairs was never put to TS to provide her with an opportunity to respond to such a suggestion, as required by Browne. v. Dunne. Given the importance placed on this evidence, it is a factor I have considered in assessing MC’s credibility.
[57] I found MC’s evidence regarding TS’s motive to fabricate at odds with his evidence about his relationship with TS generally. MC initially testified that he had no relationship with TS. In the years that TS was friends with NC, MC had never been alone with TS. He had never conversed with her without a member of his family present. Regarding the motive, MC testified that TS’s attitude towards him changed after he informed her mother of her rude behaviour. TS became less talkative. She was quieter and would just wave. I have troubles reconciling how a nonexistent relationship became more nonexistent. MC testified that he could tell that TS had changed because of her facial expressions. He was not able to meaningfully explain what this meant or how TS’s facial expressions changed. In re-examination, MC testified that when the Crown was examining him using the word “relationship”, he understood this to mean a relationship between a husband and wife. Considering the exchange between the Crown and MC, it defies credulity to suggest that MC understood the Crown to refer to his relationship with TS as that of husband and wife. If this was accurate, it would remove all context from MC’s responses to the Crown, rendering them more nonsensical. I found MC’s evidence in this area to be disingenuous and lacking credibility.
[58] The final and arguably most compelling reliability concern arises from MC’s recollection of June 1st, 2022. MC’s recollection of that day was incredibly precise. He recalled when TS arrived. He recalled her taking off her shoes. He recalled TS moving towards the kitchen. He recalled going out the front door at 8:05. He recalled speaking to his neighbour by a shared fence. He recalled his precise location when speaking with his neighbour. MC recalled that conversation was four to five minutes long. He recalled watering his plants and replacing the hose. MC entered the house through the kitchen side door. He recalled seeing his daughter coming back and forth to the kitchen, sipping milk. He recalled TS playing with a balloon just prior to leaving for school. The girls left just after 8:10am.
[59] MC was asked how he was so certain about his recollection of the details of the day. He stated that he would never forget the details because he was arrested two days later. I am unsure how being arrested would solidify in his mind events prior to his arrest. MC further explained that he was going through health issues, developed prostate cancer, and going back and forth to health clinics. The relevance of these added justifications for his memory were not explained by MC. I did not find his answers convincing.
[60] I found MC’s memory to be incredible considering, for MC, there was nothing extraordinary about June 1st, 2022. It was a normal day in a normal week. MC’s morning tasks were routine and uneventful. Despite this, he had a remarkable memory for detail. I found this aspect of his evidence to be flawed by exaggeration and an effort to distance himself from any potential contact with TS.
[61] I note further that MC’s recollection of the morning events was remarkably similar to his daughter and the neighbour’s evidence. Seemingly without any collusion, their evidence fit together like a well-designed puzzle attempting to form a picture of innocence. From MC’s evidence in chief, I understood that there was no collusion between the witnesses. In cross-examination, MC confirmed my understanding by explaining that he only discussed the charges with his wife. He later contradicted himself by explaining his family had a meeting the day he was arrested, two days after the allegations. MC received a call from the police. He returned home and met with his family. During this meeting the entire family discussed the charges and shared their recollections from June 1st, 2022. In MC’s words, “Then we talk about, to find out what happened there. Anything happening there because we didn’t know before.”
MC’s Wife
[62] MC’s wife testified first for the defence. Her evidence did not contain any direct evidence from June 1st, 2022. Her testimony included descriptions of the family residence, including the introduction of video recorded evidence of the residence. MC’s wife’s evidence does not directly assist the defence in advancing their lack of opportunity argument. The video evidence, however, was useful in assessing both MC and his daughter’s evidence. Both provided evidence supporting a position that MC could not have gone downstairs. MC testified that the stairs make noise when someone descends into the basement. NC testified that one of the reasons she was confident her father did not go downstairs was because she did not hear anyone on the stairs. Both their evidence was undermined by the video evidence. MC’s wife recorded herself descending into the basement. As I previously noted, the sound of the stairs as MC’s wife traversed them was not as loud as described by witnesses. Certainly, not so demonstrably loud that it would alert everyone in the residence.
NC
[63] The second defence witness was NC. NC is MC’s daughter and was TS’s friend. She had been friends with TS since kindergarten. At the time NC testified she was 13 years old, in grade eight.
[64] NC’s evidence shifted back and forth from general recollections of her daily routine of TS picking her up before school to specific recollections of June 1st, 2022.
[65] NC testified that she was aware of the allegations. She testified that everyone in their house knew by Friday. The family had a meeting on June 3rd, 2022. During this meeting the family discussed and shared their recollections of June 1st.
[66] NC confirmed that she received a text message from TS on June 1st disclosing the allegations.
[67] Very similar to her father’s evidence, the thrust of NC’s evidence was that her father could not have committed this offence because of a constellation of objective factors limiting any opportunity for contact with TS. For example, she testified that her father was first in the living room, then out-front watering the plants. She saw her father watering the front plants. During this time TS was downstairs. NC testified that she heard TS go down the stairs. She did not hear anyone else go down the basement stairs. They both testified that TS was playing with a balloon by the front door just prior to leaving for school.
[68] NC’s evidence mirrored her father’s in many respects. For example, they both testified that TS arrived at approximately 8:05am. MC opened the door, followed quickly by NC. The girls did not really speak, only saying hi. They both testified that NC was going back and forth to the kitchen drinking milk. NC testified that she saw her father use the front door to exit the residence. Finally, NC’s narrative of the circumstances of the events surrounding the motive to fabricate remarkably echo her father’s.
[69] NC testified that you can hear someone going down the basement stairs. The stairs make a creaking noise that can be heard from upstairs. In the course of assessing MC’s testimony, I found that I do not accept this evidence. The video taken by MC’s wife helpfully established this. Considering this, I do not accept NC’s evidence on this point. It is a factor I have considered in assessing her credibility.
[70] NC did not see her father come back into the residence. She assumed that he used the kitchen door because she did not see him enter. NC recalled seeing her father in the living room when TS came up from the basement.
[71] NC’s evidence, if believed, does narrow the window of opportunity for an offence to have occurred. However, it does not do so absolutely. By everyone’s admission, MC entered back into the residence through the door by the kitchen. This provided him with direct and immediate access to the basement stairs.
[72] Given the remarkable coincidence in the evidence between NC and her father. Given the family meeting on June 3rd, 2022, where it was discussed and agreed how this offence could not have occurred, I have concerns about the reliability of NC’s evidence. I will add further analysis in my discussion of the defence evidence later in my judgment.
[73] Earlier in my judgment I expressed credibility concerns with MC and GP’s ability to recollect the events on June 1st, 2022 with incredible detail. By their accounts this was a routine day, where nothing eventful happened. I share these credibility concerns with respect to NC’s evidence. When questioned on her ability to recall this day, NC initially testified that she recalled June 1st because it was a significant day for the family. NC later conceded that there was nothing noteworthy about June 1st. It was just a routine day where she was getting ready for school. In comparison, NC did not have a clear memory of the day before or the day after June 1st.
The Neighbour, GP
[74] MC’s neighbour, GP, was the third witness for the defence. He testified that MC confided in him about his charges approximately two to three months prior to the trial commencing. GP could not believe that his friend had been charged. Without any collusive influence from MC, he recalled the precise day that this happened. He recalled speaking with MC outside by the fence separating their properties around the time the offence would have taken place. In essence, his evidence suggested that MC could not have committed the offence.
[75] I noted a few things about GP and his evidence. First, similar to the other defence witnesses, though more remarkable, GP had specific recollections of what he was doing during the morning of June 1st. GP’s disclosure conversation with MC was approximately one year and nine months after June 1st, 2022. Despite a prolonged period between the allegations and when he was asked to recall them, GP testified he had a good memory of that morning.
[76] GP recalled his interactions with MC. I tend to believe that the conversation that he had with MC did occur at some point. However, I find it incredible that GP was able to tie that conversation directly to June 1st, 2022. Aside from a few details of the conversation that assisted GP’s recollection, there was nothing in his evidence to anchor this memory to this specific day. When asked why he remembered his conversation with MC was on June 1st, GP simply stated that he remembers most things. GP admitted that there was nothing that could attach his recollections to June 1st. He did not see anyone arrive at the residence. He did not see the girls leave for school.
[77] GP testified that MC was upset and confided in him that he was charged. In cross-examination, GP testified that he had no idea what happened inside the residence. In other words, MC did not share the details of the allegations. There is some support for this position in MC’s evidence and GP’s initial evidence in cross-examination when he testified that he believed MC’s daughter’s friend was suing MC. GP’s evidence that he had no knowledge of the allegations is an interesting piece of evidence. On its face, it appears credible. However, it is undermined by GP’s presence at the trial. Both MC and GP testified that he (GP) volunteered to testify, believing his evidence to be relevant. I question how GP would know his evidence of his interactions with MC outside the residence would have any relevance. This suggests that the discussion between MC and GP was more detailed than the disclosure of the existence of criminal charges.
[78] The only paradoxically positive aspect of GP’s evidence was when he candidly volunteered that, at the time of his evidence, he was committing insurance fraud by registering his residential address in a different jurisdiction to avoid paying the increased insurance rates associated with Brampton. I did not view this expression of honesty as reflecting positively on GP’s credibility.
[79] With these concerns in mind, I conclude that I have both credibility and reliability concerns about GP and his evidence.
Assessment of the Defence Evidence
[80] As I noted, I was invited to view the totality of the defence evidence, though not quite an alibi, something close to an alibi. As such, I should reject TS’s evidence. Respectfully, I do not agree. As I noted, I have both credibility and reliability concerns with the evidence of each defence witness. Importantly, I do not accept MC’s evidence.
[81] I find it remarkable that three of the four witnesses called had such precise recollections of the events of a morning that would be nothing more than routine for the family.
[82] I also found it concerning that none of the defence witnesses were willing to consider the possibility that MC had an opportunity to commit this offence. I do not mean their evidence lacked consideration of the fact he actually committed the offence. I am specifically considering the opportunity to commit the offence. Despite the defence evidence was not an absolute alibi because of which MC could not have offended, each of the defence witnesses were convinced this could not have happened. They appear to have started their individual assessments with a conclusion that MC was innocent and worked backwards seeking support to justify their conclusion.
[83] Indeed, MC’s family convened a meeting the day MC was advised of the charges. As MC testified, the family met to jointly decide what occurred. I conclude that the family began their discussions with a conclusion that MC could not be guilty of this offence and worked backwards martialing support for this conclusion.
[84] Offences of this nature against children are often committed in private. Sometimes by people with no observable signs of a predilection for committing this offence. That is what makes these offences troubling. I raise this not to suggest that MC was more likely to have committed this offence because there were no signs, but to illustrate that it is understandable that his family would start their evidence from a conclusion of impossibility, bolstered by recollections that, in their mind, tended to support that conclusion.
[85] However, there can be a logical flaw in an approach of starting with a conclusion, then gathering supportive evidence. It limits an assessor's ability to arrive at an objective and impartial result. In the circumstances of this case, it is a factor in assessing both the credibility and reliability of the defence evidence.
[86] I have firmly kept in mind that MC is presumed to be innocent. It is only when the Crown displaces that presumption beyond a reasonable doubt that I am permitted to find him guilty. As I noted, this is a high burden.
[87] Considering the totality of the evidence, I am satisfied that the Crown has proven MC’s opportunity to commit the offences beyond a reasonable doubt. MC admitted to entering the residence through the kitchen door. This door is directly in front of the basement stairs. On the evidence I do accept, MC’s whereabouts from the point when he was watering the plants at the front of the residence to where NC observed him in the living room prior to the girl’s departure is unaccounted for. I accept TS’s evidence that MC came down into the basement and approached her. I find MC took this opportunity to descend into the basement and commit the offences as described by TS.
[88] Considering the defence evidence in light of the other evidence I do accept in this trial, including the evidence of TS, I do not find the defence raises a reasonable doubt.
[89] I am not, otherwise, left with a doubt that MC committed this offence.
Conclusion
[90] The totality of the evidence in this case supports the conclusion that MC had an opportunity to commit this offence. The significance of the contradictions within MC's evidence struck me as being plainly contrived and aimed at constructing a narrative that excluded any opportunity for his privacy with TS.
[91] In conclusion, after considering all of the evidence and the submissions of counsel, I conclude that the Crown has proven all of the elements of the offences arising from the incident of sexual assault as described by TS.
[92] I am not left with any doubt about MC’s actions on June 1st, 2022, as I have described above.
[93] I find MC guilty of all three counts on the information.
Released: October 3, 2024
Signed: Justice Andrew F. Falls
[^1]: R. v. W. (D), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.).
[^2]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
[^3]: R. v. Villaroman, 2016 SCC 33, at paras. 28,36.
[^4]: R. v. Menard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.
[^5]: R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont. C.A.) per Watt J.A. at para. 41; R. v. Slatter, 2019 ONCA 807, [2019] O.J. No. 5073 Ont. C.A. per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), pp. 32 to 33.
[^6]: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26.
[^7]: R. v. Norman, 1993 CanLII 3387 (ON CA), [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart, supra at para. 19; R. v. G.G., 1997 CanLII 1976 (ON CA), [1997] O.J. No. 1501 (Ont. C.A.) per Finlayson J.A. at paras. 14 to 19; R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15 to 17. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.) per Doherty J.A. at para 66.
[^8]: R. v. Stewart, supra at para. 27; R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (Ont. C.A.) per Galligan J.A. at para. 23; R. v. Gostick, supra at para. 14.
[^9]: R. v. ARJD, 2018 SCC 6; R. v. Steele, 2021 ONCA 186, R. v. Lacombe, 2019 ONCA 938
[^10]: R. v. C.P., 2021 SCC 19, at para. 35; R. v. Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32[W.H.]; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14.
[^11]: R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (Ont. C.A.) at paras. 12 to 13.
[^12]: R. v. Gravasande, 2015 ONCA 794; R. v. George, 2016 ONCA 464