Court File and Parties

Court File No.: CR-15-30000261-0000 Date: 20160520 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – H.C.

Counsel: Leslie Zamojc, for the Crown Justin Chan, for the Defendant

Heard: February 16, 17 & 18, 2016

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

Reasons for Decision

Background

The Charges and Pre-Trial Applications

1This case involves allegation of sexual touching (Criminal Code, s. 151) and sexual assault (Criminal Code, s. 271) by J.M., age four at the time, against the accused, H.C., now age 64. This is alleged to have occurred sometime between September 1, 2013 and January 21, 2014.

2The Crown applied under s. 486.2(3) of the Code unopposed by the defence for J.M. to testify outside the courtroom as the law allows for a person under age 16, which I granted. The Crown also applied unopposed, and I allowed, for a support person for J.M. as is permitted under s. 486.1(1) of the Code for complainants alleging sexual offences.

3The Crown further applied to have an interview the police conducted with J.M. on January 21, 2014 admitted as evidence. Section 751.1 provides that in any proceeding relating to certain sexual offences "in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape.” The videotape was made close in time to the alleged offence which increases the potential for reliability.

4This application was unopposed by the defence. As determined below, J.M. adopted the videotaped statement. I allowed it into evidence.

5During J.M.’s testimony she was situated in a room external to the courtroom. In that room with her were her aunt who was her support person, Crown counsel and defence counsel.

Background Facts

6J.M. started junior kindergarten in September 2013. The grandfather’s son, R.C., would pick her up after school and take her to the grandfather’s apartment on Echo Point Drive in Scarborough. The grandfather lived with R.C. and an aunt who ceased living there sometime before Christmas of 2013. The arrangement was that the grandfather would look after J.M. until the mother picked her up after work. J.M.’s mother would pick her up from the grandfather’s around 7:30 p.m. each week day.

7H.C., a decades-long friend of the grandfather, would come to visit the grandfather two or three evenings per week after work. J.M. refers to H.C. as Uncle A. so hereafter I will refer to the accused as Uncle A. Uncle A. would arrive around 5:00 p.m. to 5:30 p.m. from his employment. Uncle A. and the grandfather would routinely watch television together during Uncle A.’s visits. He would leave the grandfather’s apartment for his home in Toronto at about 6:00 p.m. to 6:30 p.m.

8Uncle A. and the grandfather were very close friends. Because the grandfather did not have a car, Uncle A. would run errands like grocery shopping, banking, and taking him to appointments, sometimes after work but also on weekends. Uncle A. also did repairs on the grandfather’s homes over the years. The grandfather is elderly, at age 75 years, and suffers from pain and physically limiting medical conditions and mild dementia. The mother indicated his pain medication makes him forgetful.

9Uncle A. testified that he would call the grandfather after his arrest and he could not understand why the grandfather would not return his calls and would refuse to speak to him. Since Uncle A. was arrested he has not seen his old friend.

Evidence Related to the Charges

J.M.’s Report of Abuse to Her Mother

10The mother testified she would always ask J.M. about what had happened during her day. She would regularly tell her that her body was her own and that no one should touch it inappropriately. She told J.M. about “good and bad touches” and that if anyone touches her in a bad way she should say “no” and that she should tell mommy if it ever happens. The mother testified she and her daughter had an open line of communication with each other. J.M. was not shy to tell her mother if she was hurt or if she needed something.

11On the evening of January 21, 2014, when J.M.’s mother was getting J.M.’s infant brother ready for a bath, J.M. revealed to her mother that Uncle A. had sexually abused her.

12The mother’s evidence is that she had disrobed the baby in the living room of her apartment. She left that room momentarily. When she returned to the living room she saw J.M. playing with the baby’s penis. The mother testified she was surprised and asked J.M. why she was doing that. The mother then told J.M. that it is not okay to play with the baby’s private area or penis.

13The mother testified that J.M. then said it is okay because I see the boys’ penises at school all the time. According to the mother she then told J.M. the boys’ penises have nothing to do with you. It is their private spaces. The mother said J.M. then turned around to her and said it is okay. I have seen Uncle A’s penis. The mother asked J.M. what she means. J.M. responded that Uncle A. told her to put his penis in her mouth.

14The mother testified she got very upset and asked J.M. if she touched Uncle A.’s penis and J.M. said, “Yes”. The mother said she then asked J.M. if Uncle A. touched her in her vagina area and J.M. said, “Yes” and pointed to her own private area. The mother testified, as did J.M., that J.M. would refer to men’s and boys’ penises as their “nu nus”.

15Then the mother asked if Uncle A. put his penis in her mouth and she said, “Yes”. The mother asked J.M. when it happened and she said “the other day”. The mother testified that as a four-year-old, it was not unusual for J.M. to not be able to grasp the concept of time. The evidence is not clear exactly when the alleged incident happened.

16J.M. told her mother the incident occurred in the grandfather’s bedroom. The grandfather’s apartment has three bedrooms and a main bathroom along a hallway. The grandfather’s bedroom is toward the end of the hallway. The living room, dining room and kitchen are at the other end of the apartment near the entrance to the apartment. The grandfather’s bedroom, from the living room chairs where Uncle A. and the grandfather watch television, is not unobstructed. There is also a television in the grandfather’s bedroom.

17The mother testified that J.M. never expressed any negative feelings about Uncle A. before or after the incident. The mother indicated that J.M. was never in the sole care of Uncle A. and that Uncle A. did not discipline her, only the grandfather. However, the mother was only present for a short time at the grandfather’s when she would pick J.M. up after school. She never witnessed the circumstances at the grandfather’s apartment when J.M. stayed there after school. Uncle A. testified that he never disciplined J.M., provided her with snacks or put her down for a nap. The grandfather did these things for J.M.

18The mother called the police after J.M. told her about the abuse. The police came to the mother’s home and then took the mother and J.M. to the station for a videotaped interview.

Evidence of J.M.’s Personal Characteristics

19The mother’s evidence and Uncle A.’s descriptions of J.M.’s personality seem to be in general accord.

20The mother testified J.M. would throw temper tantrums and when she did her mother would tell her to use her words. At times the mother would send her to her room until she settled down. The mother testified that J.M. was often too aggressive with her brother and she would have to be disciplined for this. J.M. confirmed that when she was “pushy” with or was “hurting” her brother, her mother would get upset and send her to her room.

21As part of her narrative, the mother testified the teachers at school informed her that J.M. was too aggressive with the other children at school. When the mother would pick J.M. up from the grandfather’s after work, she would ask J.M. if she had misbehaved at the grandfather’s.

22Uncle A. described J.M. as a very willful and talkative child who would go to great lengths to get her own way especially with the television. The only times Uncle A. saw J.M. throw tantrums was when she wanted to change the channel on the television in the living room. Like the mother, Uncle A. described J.M. as not a shy child and as somewhat aggressive. As with her mother, J.M. was not shy to tell her grandfather or Uncle A. when she wanted or did not want something. J.M. confirmed in her evidence that if anyone hurt her in or out of school she would tell her mother or grandfather.

23J.M. had a favourite television showed called “Treehouse” which came on while she was at her grandfather’s home which she was always intent on watching. Uncle A. and the grandfather would be in the living room watching television. Uncle A. described how, when it was time for Treehouse to come on, J.M. would grab the television remote control in the living room and take off with it. She would scratch the television with her fingers. Uncle A. testified the grandfather would ask him to turn on the television in the grandfather’s bedroom so she could watch her show there. Uncle A. said he would do this but after he did this he would then immediately leave the bedroom and rejoin the grandfather in the living room. It is Uncle A.’s evidence that J.M. would go into the bedroom to watch Treehouse always on her own. The bedroom door was always open.

24Uncle A. also described J.M. as very energetic. She would get aggressive and sometimes unexpectedly jump on his lap or shoulders when she wanted to see Treehouse. To settle her down, Uncle A. would give J.M. what she called a “horsey back ride”. That would involve J.M. placing each of her feet on his feet and Uncle A. alternatively raising each one of her feet with his.

25Uncle A. described a particularly willful act by J.M. Uncle A. testified she once took a hammer from a bedroom where Uncle A. was fixing the door and ran away with it. He had to chase her to take the hammer from her. He testified she then got angry and went to the grandfather’s bedroom.

26J.M. showed a great deal of confidence when testifying at trial about her kindergarten class. She testified when the teacher would ask questions she would always raise her hand to answer the questions and she said she would give answers. When asked whether her answers were always right she said, “Yes”.

27J.M. appeared quite comfortable and energetic in both the police interview and during the trial. She moved around freely on the couch in the police interview and on her chair at trial.

J.M.’s Testimony about Police Interview

Admission of the Videotape

28J.M. was six years old at the time of trial. J.M.’s video recorded interview was played in the courtroom and before J.M. in the exterior room. J.M. was visible to me and I was visible to J.M. through close circuit television monitors. After watching the video, J.M. was asked whether what she saw and heard represented what happened when the police interviewed her. J.M. responded, “Yes”.

29I was satisfied J.M. adopted her video statement and I admitted it into evidence.

J.M.’s Videotape Evidence

30J.M. was four years old during the police interview. The interview was conducted the same evening that J.M. told her mother about the incident with Uncle A. In the police interview room with her were Officer Stapleton (a male officer) and Officer Crawford (a female officer). Officer Stapleton conducted the interview and Officer Crawford took notes.

31Officer Stapleton asked J.M. questions in order to assess her ability to distinguish between the truth and a lie, why it is important to tell the truth, the difference between what is real and make-believe or pretend. He asked questions to distinguish whether she knew the difference between boys’ and girls’ private parts, the difference between a penis and a vagina. J.M.’s evidence satisfied me that she understood the difference between truth and a falsity, between real and make-believe. I am also satisfied that J.M. knew the difference between male and female private parts.

32The officer asked J.M. about what had happened earlier with her brother getting ready for a bath. He asked J.M. if she recalls telling her mother something. The officer asked J.M. what it was about that you told your mom. J.M. said, “Ah – Uncle A.” When the officer asked what it was about Uncle A., J.M. sighed and said, “He put something in my mouth”. J.M. was asked what he put in her mouth and she said, “Ah, it was right here”, pointing to her crotch area.

33When asked about her brother and whether he had what she was pointing to down there she said, “Yes”. When asked where it is on your brother, J.M. again pointed to her crotch area, saying, “It would be right there.” J.M. went on to say she does not have one because she’s a girl, not a boy. She said only boys have one. When asked what boys do with it J.M. said, “They pee or pooh with it.”

34Minutes later, back on the question of what Uncle A. did, Officer Stapleton asked J.M. what did he do? J.M. replied “Ah – I forgot what he put in my mouth. When prompted by a few more questions such as, “You forgot? Now did you forget or you just don’t want to say?” J.M. responded, “Aye – I forget.” When J.M. was reminded that a little bit beforehand she had pointed to her legs and Officer Stapleton asked whether she remembered that – was that where it happened, J.M. replied, “Yes”.

35J.M. then went on a tangent about Uncle A. calling her because she clogged the toilet. She then spoke about how she clogged her mom’s toilet.

36The officer then returned to the subject of Uncle A. putting something in her mouth. He asked where it happened. J.M. replied at grandpa’s house. When asked if she remembered when it happened, she said, “No”. When asked, she recalled that she had been at grandpa’s house earlier that day and that grandpa, Uncle A. and she were there. She was again asked if she remembered saying Uncle A. put something in her mouth. J.M. was asked whether it happened today, yesterday or was it a long time ago. J.M. said, “Today”.

37J.M. then was asked where she was at grandpa’s house. She said in the living room and when asked where Uncle A. was she said, “He wasn’t there.” When asked if Uncle A. was there today, J.M. responded, “No.” When the officer told her he was trying to figure out if Uncle A. put something in her mouth and where, J.M. stated, “Ah. It happened in the washroom.” “Ah, then, when we started in the washroom – he started in the bedroom.” The officer then asked what he did when he put something in her mouth and whether he said something to her.

38J.M. stated, “Ah – he – opened his pants – and he gave it to me but I said I don’t want to see that anymore.” When asked if that meant J.M. had seen it before she said that was the first time.

39J.M. then began speaking about the fact her mother talked to her about things right here, pointing to her crotch. When J.M. was asked whether her mother told her about that tonight J.M. said, “Yes”, and stated her mother told her, “Tell Uncle A. don’t, don’t do that again.” The officer asked J.M. if this was a game she and Uncle A. played when he put something in her mouth. J.M. answered, “It’s not a game.” When asked how she felt when that happened, she replied, “I feel sad.”

40Officer Stapleton tested J.M.’s ability to distinguish between what is real and what is make-believe. He asked J.M. whether when Uncle A. put something in her mouth it was make believe or real. He asked whether she understood what “real” means. She said she knew what real means. When asked whether what Uncle A. did is real or make-believe that it happened, J.M. responded, “Real”.

41Officer Stapleton went through a few exercises to determine whether she knew what make-believe and pretending mean. He asked her about if she said there was a unicorn on her roof would that be pretending. She said, “No way!”, “No way”. The officer asked would that be real and she responded, “N-o-o-o.” The officer also misidentified the colour of his shirt and the walls in the room and asked her if what he was saying was real, she said “No way!” The officer then went on to ask if he were to say that Uncle A. put something in your mouth would that be real or make-believe. J.M. answered, “Uhm – real.”

42Officer Stapleton asked what Uncle A. was wearing at the time he put his penis in her mouth. J.M. said she remembered and said he was wearing a black shirt, black shoes and grey pants with white stripes. Uncle A’s evidence is that he has a black shirt and black shoes. He stated however he did not own grey pants with stripes. Uncle A. also pointed out he never wore his shoes in the grandfather’s apartment or inside the bathroom or bedroom. He would leave his shoes at the doorway where others left their shoes.

43The officer went back to whether J.M. had seen Grandpa’s thing between his legs that boys have. J.M. said, “Yes.” He asked whether she actually saw it and she repeated, “Yes.” She then said, “But he didn’t put it in my mouth.”

44Then Officer Stapleton went back to ask whether J.M. had seen Uncle A.’s (penis). J.M. responded, “No-o-o-o!” When the officer reminded her that she said Uncle A. had put it in her mouth, J.M. responded “Ah! No way! I didn’t go there.” She explained she didn’t go there, that she was at home and then at grandpa’s house. The officer then asked if she was at grandpa’s place, did she or didn’t she see Uncle A.’s there between his legs. J.M. replied, “Huh?” The officer then asked did she or did she not see it there. J.M. responded, “Didn’t see it there.” The officer asked, “Where did you see it?” J.M. replied “Uh - - I didn’t see it ah – ah – ah a million years.”

45The officer queried, “A million years?” and J.M. responded, “I didn’t see it before.” The officer questioned, “You didn’t see it before? Have you ever seen it?” J.M. responded, “No. I didn’t see it before.” Officer Stapleton then indicated he was going to ask a serious question. He repeated, “So if I were to ask if you ever seen Uncle A.’s boy between his legs - have you ever seen it?” J.M. answered “No-o-o.” The officer then asked J.M. if she was telling the truth. J.M. answered, “Yes.” Then J.M. stated she did see it.

46Officer Stapleton then asked what happened when she saw it. J.M. responded, “Ah – I told grandpa.” The officer then asked what she told grandpa. J.M. responded, “I told him Uncle A. put something in my mouth.” The officer then asked, “What did grandpa say?” J.M. responded, “Uncle A. put something in your mouth?” J.M. said she told her grandpa, “Yes.” The officer asked what did grandpa say and J.M. responded grandpa said, “Ah show me.” J.M. indicated she said to her grandpa, “There he (Uncle A.) is.”

47J.M. stated that grandpa asked Uncle A. what he was doing. J.M. said Uncle A. responded, “I’m putting stuff in Missus’ mouth”, and she said grandpa asked, “Why?” J.M. went on to say that Uncle A. said, “Because I want to”, to which her grandpa said, “That’s not nice.” Then according to J.M., Uncle A. said, “But it is nice”, and grandpa told Uncle A. to go sit on the sofa, “because you’re not being nice.”

48J.M. explained that what Uncle A. did that was not nice was putting his “nu nu” in her mouth. The officer went through an exercise with J.M. using a stuffed animal in the interview room where the officer asked J.M. to point to where the toy’s “nu nu” was. J.M. pointed between the toy’s legs.

49Officer Stapleton returned to ask if J.M. told her mother what happened today to which J.M. responded, “Yes.” She said her mom told her, “It’s not nice to touch things that people has … Don’t touch Caden’s thing or uncle A.’s thing.”

50Then J.M. trailed off and, unprompted, started to speak of things about kids at school unrelated to the type of subject matter in the rest of the interview.

51Before the end of the interview the officer returned JM to the topic of Uncle A. He asked her what she would feel if she saw Uncle A. again. J.M. said, “Ah - happy.” Officer Stapleton then asked, “How did you feel when you saw Uncle A. today?” J.M. responded, “Ah - sad. Because I – thought he was gonna put something in – my mouth.” The officer asked if J.M. saw what colour it was and J.M. said, “No. Yes! It was brown!”

Test of J.M.’s Competency to Testify in Court

52At the start of examination-in-chief Crown counsel went through a few exercises with J.M. to establish whether she appreciated why she was required to talk about what happened to her.

53The Crown inquired in the following areas: whether she comprehends the seriousness of taking an oath; whether she appreciates the necessity of telling the truth; whether she knows the difference between the truth and lies; what happens when you lie or do not tell the truth; what it means to pretend or to make believe; what the difference is between telling a lie and playing make-believe; and what is the difference between what is real and what is make-believe.

54Defence counsel asked J.M. about what she did in the drama centre. She was asked whether she played make-believe in the centre and pretended to be a princess or a baby or a grown - up. J.M. testified she only did this make-believe on Hallowe’en.

55The Crown asked J.M. about whether it was important to tell the police the truth and questioned what J.M. thought would happen if she did not give the right answer. J.M. responded “they have to ask the question again and again”… “if you don’t give the right answer you can say I don’t know” ... “You can get a break so you can think about it”.

56J.M. struck me at ages four and six as a very intelligent young girl, not at all shy or reserved in the unfamiliar context of a court proceeding. She was generally spontaneous in her answers. She expressed she understood the importance of telling the truth and said she knew the difference between what is real and what is make-believe. I believe that in general J.M.’s testimony demonstrated her ability in those areas.

Pertinent Areas of J.M.’s Testimonial Evidence

57J.M. is six years old at trial. The Crown explored with J.M. the opportunities that J.M. might have seen boys’ penises. Contrary to what her mother testified that J.M. told her, J.M. denied seeing boys’ penises at school. She said boys never showed their penises to her “because the teacher says it’s inappropriate”. She denied that any boys said silly things about boys’ bodies.

58The Crown asked J.M. about the incident on the evening of January 21, 2014 when her mother was getting her brother ready for a bath. The Crown put to J.M. that her mother caught her playing with her brother’s penis. Contrary to her mother’s evidence, J.M. testified “No I never played with his penis.”

59In the videotape statement, J.M. told the police she had seen her grandfather’s penis. When asked in cross-examination at trial J.M. said she never saw her grandfather’s penis.

Analysis

Legal Principles

Credibility in Childhood Sexual Assault Cases

60Over the years the law on assessing the credibility and reliability of the evidence of child witnesses has evolved. In 1990, the Supreme Court of Canada commented:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54 - 55, (S.C.C.)

61In R. v. W. (R.), the Court further commented:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

R. v. W. (R.), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at p. 144, (S.C.C.)

62The Court of Appeal made an important point on the standard applicable to the evidence of children in relation to that of adults:

As I understand these two judgments, we must assess witnesses of tender years for what they are, children, and not adults. We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability that we do adults. My concern is that some trial judges may be inadvertently relaxing the proper level of scrutiny to which the evidence of children should be subjected. The changes to the evidentiary rules were intended to make child evidence more readily available to the court by removing restraints on its use that existed previously but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to a higher standard.

R. v. Stewart, [1994] O.J. No. 811 (Ont. C.A.), at p. 8, (Ont. C.A.)

63Credibility determinations in "he-say-she-say" cases are difficult in any circumstances. This is particularly challenging in sexual assault cases involving children. It is not a scientific endeavour:

Assessing credibility is not a science ... [It is a] complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

R. c. Gagnon, [2006] 1 S.C.R. 621, at para. 20, (S.C.C.)

The R. v. W. (D.) Framework

64Credibility is the focus in this case. The Crown bears the burden to prove Uncle A.’s guilt of each of the offences charged. The law is clear. Where credibility is central the trier of fact does not determine an accused's guilt by treating the evidence as a credibility contest between the opposing sides. This is not a competition between the evidence of J.M. and Uncle A. This would unfairly place the burden of proof on the accused: R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 409, (S.C.C.).

65Where the accused testifies and credibility is a critical issue, the Crown's burden of proving guilt beyond a reasonable doubt must be applied to the issue of credibility. The trier of fact is not required to wholly believe one witness or one set of witnesses. The trier can believe all, some or none of any witness's evidence.

• The accused must be acquitted if, considering the evidence on a whole, the trier of fact believes the accused's evidence.
• Even if the trier of fact does not believe the accused's evidence, but has a reasonable doubt as to the accused's guilt, after considering his evidence in the context of the evidence as a whole, the accused must be acquitted.
• Even if the accused’s evidence does not leave the court with a reasonable doubt of his guilt of the sexual offences against the complainant, the court may convict him only if the rest of the evidence the court does accept proves his guilt of those offences beyond a reasonable doubt.
• If the trier of fact is not certain whether the accused committed the act, the accused must be acquitted.

66This is a case with an accusation on one side and a flat denial on the other. Uncle A. has denied J.M.’s allegation. Cases have applied the principles in R. v. W. (D.) to flat denial evidence. An accused is entitled to flatly deny accusations and not be subjected to adverse findings because of this. The trier of fact would fall into error to reject defence evidence solely because it was a flat denial. It is most often the case that a flat denial is the only available defence for the accused in response to the facts of the allegation. All they can say is they did not do it. This is what Uncle A.’s evidence is.

67In these circumstances the accused's evidence must be analyzed in the context of the evidence as a whole: R. v. C. (R.H.) (1996), 104 C.C.C. (3d) 413 (Ont. C.A.); and R. v. Kumric, 2006 CarswellOnt 7728 (Ont. S.C.J.), at paras. 18 - 20, (Ont. S.C.J.)]. It is a mistake to reject defence evidence and find it does not raise a reasonable doubt for the sole reason the trier of fact believes the Crown witness without any analysis of the defence evidence. To make this error is to run afoul of R. v. W. (D.). A trier of fact has to examine all of the evidence. Where credibility is in issue courts should apply the criteria in R. v. W. (D.): R. v. D. (S.), 2004 CarswellOnt 2123 (Ont. C.A.), at paras. 29 -30, (Ont. C.A.)].

Application to the Facts of this Case

General

68In cases of sexual assault we are dealing with offences that are committed without third party witnesses. Proof beyond a reasonable doubt must be determined on the credibility and reliability of the evidence. This means contradictions in the evidence must be evaluated. The Crown’s case depends solely on the evidence of J.M. There is no confirmatory evidence of the abuse which is not unexpected with this type of offence.

Uncle A.’s Evidence

69In considering Uncle A.’s evidence, I find it was on its face reliable and credible. Uncle A.’s evidence was internally consistent. He testified in a forthright and seemingly honest manner in responding to all questions. He was straightforward about his relationship with J.M. In his account of his experiences with J.M. he did not attempt to distance himself from J.M. in the sense of giving evidence that suggested he had no opportunity to commit the offence alleged against him. He did not attempt to paint a picture of his relationship with J.M. as perfectly amicable or as unamicable.

70Uncle A.’s evidence about J.M.’s personality and behaviour was consistent with her mother’s testimony about J.M. − that she is outspoken, willful and at times somewhat aggressive. He spoke about how he had to settle her down when she threw temper tantrums over the television. He did not hide the fact that he would take her to the grandfather’s bedroom to turn the grandfather’s television to her special show, the very place J.M. cites as the place where the abuse took place.

71Uncle A. volunteered that he had physical contact with her when he would give her what she called horsey back rides and when she jumped on his shoulders and lap when she wanted to watch her television show. He described what he observed of J.M. consistent with the mother’s evidence, I find, with no indication of an attempt to demonize J.M.

72Uncle A’s evidence is clear that he had an opportunity to commit the offence. But he was plain spoken and undeterred in his evidence that he would never commit the act which he was accused of. I cannot look at Uncle A.’s evidence in isolation. I must assess the credibility and reliability of his evidence in the context of all the evidence I saw and heard to determine whether a reasonable doubt is raised about his guilt.

J.M.’s Evidence

73In assessing whether J.M.’s evidence raises a reasonable doubt as to Uncle A.’s guilt, I must take a common sense approach while at the same time employing the beyond a reasonable doubt standard in evaluating the credibility and reliability of J.M’s evidence.

74Although it is not entirely clear from J.M.’s evidence exactly when the offence occurred it appears J.M. was describing a time not long before she disclosed to her mother on January 21, 2014. The mother took her to the police the same evening she made the disclosure to her. The purpose of s. 715.1 of the Criminal Code is to preserve an early account of a child's complaint and, by providing a procedure for the introduction of the child's story into evidence at the trial, to facilitate the pursuit of the truth: R. v. L. (D.O.), [1993] 4 S.C.R. 419, at para. 1, (S.C.C.)]. The focus of the analysis of J.M.’s evidence is on J.M.’s interview with the police.

75Common sense says the court cannot expect a child of age 4 or 6 to react in the same manner as an adult in an interview with the police and when testifying at court. Children’s communications will often meander from topic to topic and be distracted from the topic of a question. This is to be expected of a very young child especially when the child is subjected to a lengthy process and many questions. J.M.’s police interview was a half hour. J.M.’s words did wander in her police interview and at trial. I do not find this alone detracts from the reliability or credibility of her evidence. But I must review any contradictions in the evidence.

76What I am concerned about is the internal inconsistencies in her evidence in the police interview.

77When first asked about Uncle A. and what he did, J.M. stated that he put something in her mouth and when the officer asked her what he put in her mouth, she pointed to her crotch area. The areas of her evidence I am most concerned with are where, after saying he put something in her mouth, J.M. said she did not recall what Uncle A. put in her mouth or denied that Uncle A. put something in her mouth.

78Shortly after the first time J.M. said Uncle A. put something in her mouth she stated she did not recall what Uncle A. put in her mouth. Before J.M. got back to saying Uncle A. put something in her mouth she again on a number of occasions said she did not remember if Uncle A. put something in her mouth.

79Then after several minutes of more questions J.M. told the officer it happened in the washroom and he started in the bedroom. She said he opened his pants and gave it to her and she said she did not want to see it anymore. After several more questions she said she felt sad when it happened. When prompted, she stated that Uncle A. putting something in her mouth was real, not make-believe. When asked what Uncle A. was wearing she gave the description of his clothes mentioned above.

80After several other questions, J.M. again stated she saw “Uncle A.’s” (penis). When asked immediately after that response when she saw “Uncle A.’s” she said she did not see Uncle A.’s. Then several questions later she again said she did not see Uncle A.’s. After several more minutes of questions J.M. again stated on more occasions she did not see Uncle A.’s. Immediately after J.M. stated she did not see Uncle A.’s she then again said she did see it. After the statements about J.M. telling her grandfather what Uncle A. did and the grandfather’s responses, J.M. then stated Uncle A. put his “nu nu” in her mouth.

81Toward the end of the interview J.M. stated in answer to the officer’s question that if she saw Uncle A. tomorrow she would feel happy. When asked how she felt when she saw Uncle A. today she said “sad” because she thought Uncle A. would put something in her mouth. When she was asked whether she saw what colour it was and J.M. said, “No. Yes! It was brown!” Uncle A. is a black man.

Conclusion

82One expects children of four years of age might have inconsistencies in their statements in an interview spanning a half hour. It is not unusual that a child might not recall details like when an incident took place. However, when there are inconsistencies such as there are in this case in the very critical area of whether the incident actually took place or not, this cuts to the heart of the determination of reasonable doubt.

83I find there were too many times in the interview where J.M. stated she did not recall whether Uncle A. put something in her mouth; too many times when she said she did not see Uncle A.’s penis and that she said he did not put something in her mouth − for me to find beyond a reasonable doubt that Uncle A. committed the offence.

84In the end I find the evidence establishes beyond a reasonable doubt that Uncle A., H.C., did not commit sexual touching under s. 151 and sexual assault under s. 271 of the Criminal Code. Nothing in the evidence taken as a whole raised a reasonable doubt in my mind about this.

Verdict

85For the foregoing reasons, I am satisfied the Crown has failed to prove H.C.’s guilt beyond a reasonable doubt on the offences against J.M. on counts 1 and 2 on the indictment.

86I therefore find H.C. not guilty on all counts on the indictment and acquittals will be entered accordingly.

B.A. ALLEN J. Released: May 20, 2016