COURT FILE NO.: CR-15758A DATE: 20230120

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – B.B. Defendant

Counsel: M. Newhouse, for the Crown S. Robichaud, T. Eapen and J. Roth, for the Defendant

HEARD: December 19-21, 2022

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

JUDGMENT

Dawe J.

I. Overview

[1] In 2018, when she was 34 years old, T.B. had a sudden “flashback” in which she remembered lying in bed with her parents when she was a child, and her father, the defendant B.B., reaching up under her shirt and touching her nipples. She is now entirely confident that this is a genuine memory of something that really happened, but which she mentally suppressed for most of her life.

[2] Based on this allegation, B.B. stands charged with a single count of sexual assault. He testified in his own defence and denied that he ever touched his daughter in the manner she describes.

[3] The question I must decide is whether, on all the evidence, I am satisfied of B.B.’s guilt beyond a reasonable doubt.

II. The evidence

[4] T.B. testified as the only Crown witness, and her father B.B. then testified in his own defence.

[5] I will begin by summarizing their largely non-contentious evidence about background matters. Since there is a publication ban over information that would disclose T.B.’s identity, I have deliberately obscured certain unimportant factual details, as well as referring to the witnesses and their family members by their initials.

A. Family background

[6] T.B. is now 38 years old. She grew up in central eastern Ontario with her parents and her sister D.B., who is four years younger. T.B. testified that her father had a closer relationship with D.B. because they were both interested in sports, which T.B. was not. However, B.B. disputed this, testifying that he coached both girls’ sports teams and thought that he had a close and loving relationship with them both. This was important to him because he had grown up in a family with a physically abusive father.

[7] T.B. testified that as a child she would sometimes go into her parents’ bedroom in the morning and get into bed with them while they slept, often falling back to sleep herself. B.B. testified that he only recalled this happening around ten times in total, and that during all of the times he could remember, D.B. was with T.B.

[8] B.B. explained that he was a habitually early riser because he started work at 7:00 a.m., and had to drive for more than an hour to get to his workplace. He also worked on alternate Saturdays, and rarely slept in even on his days off. He explained that if he got up on a non-work day, his two daughters usually came downstairs with him once they woke up.

[9] At some point during T.B.’s childhood B.B. and his wife separated, after which T.B. and her sister lived with their mother. T.B. could not recall how old she was when this happened, initially estimating that it would have been between 1996 and 1998, when she would have been between 12 and 14 years old, but later testifying that she thought she had been 11 or 12 at the time.

[10] B.B. situated the breakup in 1996, explaining that it came about after his wife had an extramarital affair with a co-worker and demanded a divorce.

[11] B.B. later remarried, and when T.B. was a young adult she lived with her father and her stepmother for around three years. B.B. helped T.B. find a job at his workplace, and they worked together for about two years before she went back to school.

[12] T.B. eventually moved to southwestern Ontario, and later had children and married, but she continued to have a generally cordial relationship with her father and stepmother.

B. T.B.’s memory of being touched by her father as a child

[13] T.B. testified that during the 2018 Canada Day weekend she and her then-fiancé stayed overnight at her mother’s house with their twin babies, who had been born a few months earlier. At some point during the night T.B.’s fiancé was lying in bed beside her, facing her back, and put his arm around T.B.’s waist. He had done this many times before, but T.B. testified that on this occasion his action triggered a sudden vivid memory of her lying in her parents’ bed as a child, and her father making a similar movement with his arm. T.B. then had a sudden mental image of her father putting his hand up the front of her shirt and touching both of her nipples at the same time with his fingers. She found this sudden “flashback” extremely upsetting and cried herself to sleep.

[14] T.B. explained that before this memory suddenly came back to her that night, she had had a vague sense that she might have been sexually assaulted as a child, but that:

Before it would be more like a flash of something, and because I did not want to think it was true I would stop thinking about it immediately, but it was the full memory that came back, as it was happening.

[15] T.B. testified that her present memory of the incident is the same as the memory that suddenly returned to her mind on the 2018 Canada Day weekend. She explained that she now remembers that when her father first tried to put his hand under her shirt she tried to push his arm away, but eventually gave up. He then put his hand up T.B.’s shirt and rubbed her chest, and she specifically remembers him touching both of her nipples simultaneously with different fingers on his right hand. This went on for perhaps a couple of minutes. Her father then withdrew his hand, at which point T.B. got out of bed and left the room.

[16] T.B.’s evidence was that she did not tell anyone what had happened at the time because she was scared and “didn’t think anybody would believe me”. She explained further that:

I don’t think it was a memory that I held onto for a long time. I think there would be things that would come up and I would suppress them.

Referring to the 2018 Canada Day flashback, she testified:

[T]here was a time when I was triggered and the memory came in full force, and felt very, very real.

C. T.B.’s disclosure of the incident to her therapist and her father

[17] For the next few months after the 2018 Canada Day weekend T.B. did not tell anyone about her newly discovered memory. However, one or two months later she found herself becoming increasingly anxious and depressed, and told her now-husband (she and her fiancé having by this time married) that she had been sexually assaulted and needed counselling.

[18] At first T.B. did not tell either her husband or her therapist that she had been sexually assaulted by her father, but she eventually disclosed this to them both. She recalled doing so towards the end of her first series of counselling sessions, which were terminating because the benefits she received through work were about to run out.

[19] By this time T.B. had “processed a lot with my counsellor and felt more ready to share who it was”. She recalled disclosing this detail to her counsellor during either her second-last or final counselling session, and also telling her husband either at the same time or shortly afterwards. T.B. thought this was “probably only a couple of months” after she first started counselling, which on her chronology would place the timing of her disclosure somewhere in the fall of 2018.

[20] T.B. explained that before she received counselling she had “also questioned how could I remember it”, and that her therapist “worked with me and ma[de] me understand how that had possibly happened”. She testified that her therapist had used an analogy, telling her:

A lot of the times in your brain when you have memories, they basically create a path and when that path is harmful, your brain covers it up as if you are walking through the woods and leaves and grass and twigs cover it. And you don’t walk that path again. What I also learned is that when you go through something traumatic, it can uncover other traumatic experiences. And [my therapist] believes when I gave birth to my twins where I almost died, that was the traumatic event that triggered that path being uncovered.

[21] After T.B. disclosed to her therapist and her husband that she remembered being sexually assaulted by her father, she still did not say anything about this to B.B. and tried to maintain their relationship as it had been before.

[22] T.B. explained at trial that she “pretended like everything was fine”, except that she now “didn’t want him to be alone” with her children. She initially testified that she believed she had accomplished this latter goal, but in cross-examination she agreed that she and her husband went to a baseball game in Toronto together in September 2018 and left the twins in the care of her father and stepmother. She initially testified that this had only been a day trip, but in cross-examination agreed that it was possible that she and her husband had stayed in Toronto overnight in a hotel.

D. The June 2020 internet fight and T.B.’s ensuing communications with her father

[23] In the late spring of 2020, which was approximately two years after T.B. first experienced the flashback of being sexually assaulted by her father, she became embroiled in a heated dispute on Facebook with some of her stepmother’s relatives. They had expressed their disapproval of people who were protesting the killing of George Floyd, on the grounds that mass protests during the COVID-19 pandemic were irresponsible. T.B. disagreed with them, and in one of her Facebook posts had called one of her stepmother’s relatives a racist.

[24] B.B. testified that after his wife saw T.B.’s Facebook post she called him in tears. He then phoned T.B. and asked her to delete the post. He and T.B. generally agree about the tenor of the ensuing phone conversations, although they recall some of the details differently.

[25] T.B. testified that from the start of the phone call her father “screamed” at her and demanded that she delete the offending post, and that she refused and then hung up on him “because I did not want to be disrespected that way”. She explained:

He called me back again and was yelling, and I told him if he continued I was going to hang up, and he did so I hung up.

[26] B.B. testified that he initially “tried to stay calm” and asked T.B. to please take down the post, but that when she refused he “got [his] back up” and “raised [his] voice”, at which point she hung up on him. He then called her back, explaining at trial:

When I called her back the second time, that’s when she said to me “stop yelling at me, if you do not respect my opinion, then you don’t respect me”, and she hung up the phone.

[27] T.B. testified that the telephone argument with her father angered her and:

Basically ignited me, like a thing in me to stand up for myself, to speak my truth, tell him, tell my family, what had happened.

She proceeded to write a letter to her father that she then sent to him either by text message or over Facebook. Her letter is undated and T.B. did not recall exactly when she sent it, but she did not dispute the suggestion that she did so on June 8, 2020, which was when B.B. recalls receiving it.

[28] By this time T.B. had resumed therapy with the same therapist she had been seeing in 2018. She initially testified that she only showed her therapist her letter after she had sent it to her father, but after refreshing her memory from her 2021 police statement T.B. adopted what she had told the police, and agreed that her therapist had reviewed all of her written communications with her father before she sent them, “to ensure there [was] the right tone … and intent”.

1. T.B.’s first letter to her father

[29] In her first letter, T.B. began by describing herself as “a cheerleader for the underdog, an advocate for those who need my assistance, and passionate in helping others”. She then stated:

It appears that the most recent events in the world are not worthy of my support and calling out family members who oppose those topics is inappropriate because it makes you and them feel uncomfortable.

With that said, the main reason I wanted to share this with you is due to an epiphany I had earlier tonight. The epiphany is this, I am so quick to support and defend others but not myself . I hid this secret about myself for so long out of fear that I would damage my family, but in this exact moment, I have realized my worth and value, and decided it wasn’t worth hiding any longer. Besides, the fear of you being mad at me has dissipated since you are already mad at me for something completely separate from this subject.

[30] T.B. continued by explaining how on July 1, 2018 her fiancé’s innocent gesture had:

… triggered a very real memory for me. Something that I had been suppressing for a long time; I had been sexually assaulted.

After explaining her decision to get counselling, T.B. continued:

The person who had sexually assaulted me was you, Dad. You may not remember and that’s okay but I do and that’s all that matters. I know you’ll question when this happened so I will tell you that it happened when you were still with Mom; I was 11 years old or under.

I just want you to know that even though you may have traumatized me in the past, I will not allow those memories or your current actions or comments [to] control me now. Screaming at me to bully me into doing what you want will not be tolerated.

Honestly, I don’t know where we go from here but what I can tell you is that I don’t feel you respect me, support me, nor do I feel safe with you. All trust has been lost. Call me when you are willing to have a respectful and open conversation with me which includes you listening and empathizing. Otherwise, please do not call me again.

[31] B.B. testified that he received T.B.’s letter on his phone when he was at work. He was very upset and called his wife, who told him to come home, which he did as soon as one of his co-workers arrived at his workplace to take over for him. B.B. testified:

That night my daughter [D.B.] called me, about 7-8 o’clock, and she said … her first words out of her mouth, “Did you do it?” And I said to her: “[D.B.], what did I do? It doesn’t say in the letter. Do you know what I did?” And she said: “I don’t know, and neither does my mother.” So … and then she says, “I love you, Dad, and if you wanna still have other conversations, I’m here for you”. And that was the end of the conversation.

2. T.B. and B.B.’s ensuing phone conversations

[32] T.B. testified that her next contacts with her father were by phone. According to T.B., during their first phone conversation after she sent her first letter:

He said he didn’t recall, and asked me to describe the incident, and again he said he didn’t recall, so there wasn’t much that we said.

T.B. recalled that the description of the incident she gave her father over the phone was “similar” to the account she gave in her trial testimony, “but I didn’t provide as many details, I guess, in terms of describing the room and whatnot”. She testified that even after she described to her father what had happened, he still said he did not remember.

[33] T.B. testified that she and her father then had a second phone conversation in which he offered to go to therapy with her. This led to a text message exchange on June 10 and 11 in which she questioned his motives for wanting to accompany her to therapy. B.B. replied that he “thought that’s what you wanted”, to which T.B. responded:

I’m open to having a conversation with you which is what I wrote in my letter but I won’t tolerate any kind of screaming or yelling and I want you to actually listen. Not to respond but to understand. Call when you have time to talk. Just as a heads up I can’t tonight as I already have plans.

They agreed to talk on the upcoming Saturday night (that is, on June 13, 2020).

[34] B.B. recalls the sequence of events differently. He testified that when he first received T.B.’s letter he was hurt and in shock, and that he went home from work early. He went back to work the next day but was “a wreck”, and has no memory of talking with T.B. on the phone until that Saturday night, June 13, when he recalled them having a FaceTime video call.

[35] B.B. testified that it was only during this conversation that T.B. told him for the first time what she was alleging he had done. He recalled her describing him as having put his hand up her shirt and holding her while they lay in his bed, but she did not say anything about him having touched her breasts or nipples.

[36] B.B. explained further that other than asking T.B. a clarifying question about how long the incident had lasted, to which she said she did not remember, he did not respond in any way to her description of her memory, because she had made it clear that she only wanted him to listen and that:

I was not to say any more. [T.B.] did not want me to comment or have any opinion of it, and we ended the conversation.

He denied telling her during this phone conversation that he did not remember the incident.

3. The subsequent June 2020 text message exchange

[37] On June 15, 2020, B.B. sent T.B. a text message, with a header dating it as having been written the previous day, in which he wrote:

I have had some time to think about our telephone conversation on Saturday, June 13 when you told me about the trauma you are dealing with and how it has affected your life.

I honestly do not remember the incident you spoke of. My heart aches that you have carried this with you for so long and have not talked to me about it, until now. I would never intentionally hurt you or [D.B.] in any way. I love you both very much and have always tried to give you my love, respect and support as a good father.

I always praise you both as the best daughters a father could have.

I respect the courage it took in speaking with me. I hope by sharing this memory it will start the healing for you.

Going forward, we can respect each other’s space, and should we want to connect we will leave the communication open.

[38] T.B. replied with an undated message that she seems to have sent several days later, because she commented that she had been “working with my therapist over the last little while so I could respond to your last message”. Her reply focused on a message she had received from B.B.’s sister, a partial screenshot of which she attached. In this partial screenshot B.B.’s sister described T.B.’s allegation as “so messed up”, and accused T.B. of misinterpreting “a loving fatherly gesture” as an act of abuse.

[39] T.B. took great umbrage at B.B.’s sister’s message, and told her father in her text message:

I can tell you this type of communication will not be tolerated and is completely inappropriate for resolving our relationship. She has no right saying any of the things she said or inserting herself into the situation.

[40] B.B. sent a reply apologizing for his sister’s message, explaining that he “had no idea she even knew about this” and agreeing that “she has no business getting involved and giving her opinion”. T.B. responded by saying that she “really appreciate[d] you acknowledging this and apologizing”, adding that she was “seeing [her] therapist on Thursday and will likely send you another message soon”.

[41] However, the next text message that T.B. sent to her father was not sent until July 22, 2020, which seems to have been several weeks later.

4. T.B.’s second letter to her father (July 22, 2020)

[42] On July 22, 2020, TB sent her father a text alerting him that she had sent him another letter by Facebook Messenger. She testified at trial that she now thought she actually sent the letter to him by email.

[43] In her second letter, T.B. apologized that it “has taken this long to write back to you”, explaining that she “needed to work through [her] thoughts and feelings before doing so”. She explained further that she had been considering four questions that had been posed by her therapist, which called on her to (i) “paint a picture” of the relationship she wanted with her father; (ii) outline both the “things [she] was willing to accept” and (iii) the “deal breakers”; and (iv) explain why she wanted this relationship with him.

[44] T.B. proceeded to summarize her answers to these questions. She explained that she wanted a relationship with her father in which he was “involved in [her] life”, adding:

Being involved means, being supportive of any decisions I make regardless if you agree or not, that you respect me, [her husband] and the kids by listening, being empathetic, and being kind to us.

[45] T.B. added that she was “willing to accept” that her father would need “time and space to be able to learn and adjust to this situation”. However, under the heading “Deal Breakers” she stated:

Any type of disrespect which includes yelling and name calling.

An unwillingness to put effort into our relationship (everything listed in the first point).

Receiving any hurtful and disrespectful messages from your family.

I will no longer attend any further [B.] family functions due to [your sister’s] recent message as I would feel very uncomfortable and overwhelmed in attending.

[46] T.B.’s answer to her therapist’s final question was that she wanted a relationship with her father because she loved him. She ended her letter by stating:

With all that said, I want to address something that I think is very important in continuing this relationship. You and [your sister] mentioned the type of Father you are and how you played a positive role in my life. I want to point out that these facts are true and I never indicated that they were not by bringing up the assault. The assault doesn’t trump you being a good Father and you being a good Father does not negate the fact that the assault is real. You need to come to terms with these things being separate from each other.

5. B.B.’s reply letter

[47] B.B. wrote a reply letter to T.B. which is undated, but which must have been sent between July 22, when T.B. sent her second letter, and August 16, 2020, when T.B. sent a reply to her father’s letter.

[48] B.B. began his letter by stating:

I am beginning this letter by saying that although I still do not remember this incident, once again I apologize for the way you have lived with these feelings for so long. That experience would be confusing and hurtful for anyone, especially at the young age of 11.

This incident has shocked me. I struggle with not only what you have said about me, but also the way you feel about me. This has not only hurt me very deeply, but also my family. My siblings and I had a rough upbringing, and even though this is not on the same level as that situation, it brings back painful memories of the past. The experiences I have endured in my life and the pain I have gone through has made me know in my heart that I would never intentionally do anything to hurt you or [D.B.].

[49] B.B. continued by saying that he considered T.B.’s use of the word “assault” in her letter to be “a very damaging word to me”, explaining that he considered an assault to be an intentional act, and stating:

[T.B.], I have never had intentions to hurt you or [D.B.] in any way and have never had any sexual thoughts about you or [D.B.] in my life. I’m your father and I love you only as a father would love his children.

B.B. then stated;

I am not saying this incident did not happen to you. I’m saying that I do not agree with the label you have of me. I am also trying to understand why you chose this removed method of communication to talk with me about something that is very important in your life. I was not aware of the situation and it has been difficult to understand through letters.

Continuing, B.B. said that he felt “blindsided” by the manner in which T.B. had first disclosed her allegation to him, explaining:

I asked you to stop the Facebook banter with [my wife’s] family because feelings were being hurt, and the next thing I knew I was being accused of assault. Sometimes people yell in arguments, but an email at 7 a.m. when I was at work was not the way I feel you should have told me.

[50] B.B. went on to say that he felt that T.B. had “attacked me with little or no respect for me”. He took issue with her insistence that he support “any decision you make regardless if I agree or not”, stating:

I have always tried to be respectful and supportive of your decisions, but at times we will have different opinions, which is only human. I cannot meet this requirement to be in your life as I would not be comfortable around you and your children, and would not want you to feel unsafe with me or distrust me.

I’m not sure where we can go from here. I wish that we could have dealt with this in a way that would have been more productive for both of us. I’m sure this incident will take us both a long time to heal.

I am willing to keep the lines of communication open.

[51] B.B. explained at trial that he sent T.B. this letter because he “loved [his] daughter and wanted to straighten out this mess”.

6. T.B.’s August 16, 2020 reply email

[52] T.B. sent her father a reply email on August 16, 2020 in which she explained that the only thing she wanted to clarify in her earlier letter was that she had meant that she expected her father to be “understanding” rather than “supportive” of decisions she made that he disagreed with. She concluded:

After a lot of consideration and with a heavy heart I’ve decided that the best thing for me and my family is to distance myself from you as it doesn’t seem like you are willing to put the kind of effort into our relationship that I had hoped for.

If after some time you have a change of heart about how we should proceed, please feel free to get in touch. Until then I will no longer be contacting you.

E. T.B.’s police complaint

[53] T.B. testified that when she exchanged these communications with her father in the spring and summer of 2020 she had not intended to report her allegation to the police. However, she later changed her mind about this, and went to the police in March 2021. She explained at trial:

I wanted to come forward. I felt that he needed to be accountable for his actions, and I also wanted to support my sister.

T.B. explained that a few months earlier her sister had also come forward with allegations of her own about their father and decided to go to the police, and that T.B. went to the police herself “mostly in support of my sister”. By this time D.B. was also seeing T.B.’s therapist, after T.B. had arranged an introduction. They both went to the police and made statements at around the same time in March 2021.

F. B.B.’s trial testimony

[54] B.B. is now 63 years old and has no criminal record. He denied ever touching T.B. for a sexual purpose, or putting his hand up her shirt and touching her nipples while she lay in bed with him.

[55] I have already summarized B.B.’s evidence about the family’s history, and about his reaction to T.B.’s allegation when he first learned of it in 2020.

[56] B.B. was cross-examined at length about why, in the text message and letter he sent to T.B. in the spring and summer of 2020, he had only told her that he did not remember the incident she was describing, rather than definitively denying that it had happened, as he was now doing.

[57] As I have already mentioned, B.B. testified that when he wrote his text message and subsequent letter to T.B., he had not known that she was accusing him of touching her nipples, and only understood her to be saying that he had put his hand under her shirt and held her. He did not recall ever holding her in this manner, and agreed with the Crown’s suggestion that this is something he thought he would remember.

[58] Later in cross-examination, Crown counsel suggested to B.B. that she thought it was:

… pretty obvious that the best way to clear up this mess would have been to set the record straight and say: “[T.B.], it didn’t happen”.

When pressed if he agreed with this, B.B. replied: “OK, yes.” He also agreed that he did not do this in his text message or his letter.

III. Analysis

A. General principles

1. The burden and standard of proof

[59] My task as the trier of fact is to decide whether the evidence presented at this trial establishes B.B.’s guilt of the charged offence, on the criminal standard of proof beyond a reasonable doubt.

[60] The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence. It is not enough for me to conclude that B.B. is probably guilty of the charge against him. While I do not have to be absolutely certain of his guilt, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40 at para. 242.

[61] In short, to find B.B. guilty I must be sure , based on all of the evidence before me, and having due regard to the absence of evidence, that he committed all of the essential elements of the charged offence.

2. The essential elements of the charged offence

[62] B.B. stands charged with a single count of sexual assault. As Major J. explained in R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 23:

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea . The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

[63] A “sexual touching” is one that is objectively sexual in nature, “such that the sexual integrity of the victim is violated”: R. v. Chase , [1987] 2 S.C.R. 293 at para. 11. There is no dispute in this case that the specific touching T.B. alleges, which included her father touching her nipples with his hand, was objectively sexual in nature.

[64] Moreover, T.B. alleges that the touching she complains of occurred when she was 11 or 12 years old. This would place the alleged incident in or around 1996, at which time the legal age of consent, as specified in s. 150.1(1) of the Criminal Code , was 14 years of age. Accordingly, the issue of whether T.B. consented to the alleged touching is irrelevant in relation to the actus reus.

[65] Moreover, since B.B. was T.B.’s father and would have known her age, any subjective belief he might have had that she was consenting to being touched in a sexual manner is also irrelevant to the issue of whether he had the requisite mens rea .

[66] The real issue in this case is whether the evidence as a whole establishes beyond a reasonable doubt that B.B. touched T.B. in the manner that she now says she remembers, but which she agrees she had no memory of for more than twenty years.

3. Testimonial demeanour

[67] I must caution myself not to place undue reliance on my impressions of either T.B. or B.B.’s testimonial demeanour. As the Ontario Court of Appeal has observed, “while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness”: Law Society of Upper Canada v. Neinstein , 2010 ONCA 193 at para. 66.

[68] The quality of witnesses’ evidence is also not determined by how well they testify. Witnesses who present poorly when testifying may still be giving honest and reliable evidence.

[69] Ultimately, the best test of witnesses’ credibility and reliability is to consider how their evidence fits together with other evidence that is either objectively reliable, or that I can otherwise be satisfied is true and accurate. As Karakatsanis J., then a judge of this Court, observed in Cuthbert v. TD Canada Trust , 2010 ONSC 830 at para 42, “[c]redibility is best tested against common sense, inherent consistency and consistency with contemporaneous and undisputed documents.”

[70] In the case at bar, however, there are no “contemporaneous and undisputed documents”, nor is there any other objectively reliable evidence. All of the evidence in this case emanates from T.B. and B.B., in the form of their in-court testimony and the written correspondence they exchanged in 2020.

[71] While the defence focuses primarily on the reliability concerns that are associated with T.B.’s recovered memory, Mr. Robichaud also argues that she was at times “self-servingly inconsistent”. I do not agree. While T.B. did change her evidence on some points in cross-examination, I would attribute this to honest forgetfulness on her part, not conscious deception or a deliberate attempt by her to shade her evidence.

[72] However, I also do not agree with the Crown’s suggestion that B.B. was evasive when he did not acknowledge that he was “upset” when he first called T.B. and asked her to take down her Facebook post.

[73] B.B.’s evidence in chief was that during this phone conversation he had tried to be calm at first, and had only raised his voice after T.B. refused to take down the post. He maintained his evidence in cross-examination, and resisted the Crown’s suggestion that he had been “upset” when he first called his daughter.

[74] In my view, it is debatable whether someone who is internally displeased, as B.B. agrees he was, but who is trying not to let this displeasure show, should characterize themselves as “upset”. As I understood B.B.’s evidence, he resisted the Crown’s suggestion that he was “upset” from the start of the phone call because he did not want to be taken as agreeing with T.B.’s evidence that he had been “screaming and yelling” from the start of the phone call.

[75] I am not prepared to interpret B.B.’s resistance to the Crown’s suggestion as an attempt by him to portray himself in a more favourable light than was justified. I draw no adverse inference from his refusal to accept T.B.’s evidence that he started the phone call by “screaming and yelling”. He is entitled to remember the phone call differently, and his memory of it might very well be more accurate.

[76] Impressions based on witnesses’ testimonial demeanour are never of more than limited utility, and in this case I find them to be of no real assistance at all. There was nothing about the way in which either T.B. or B.B. testified that gave me any good reason to doubt their honesty. This case must be decided on a different footing.

B. Assessing the reliability of T.B.’s recovered memory of the sexual assault

1. General principles

[77] The real concern in this case, as I see it, is with the reliability of T.B.’s evidence that she now remembers being sexually assaulted by her father when she was around eleven years old.

[78] It would be an error for me to automatically discount T.B.’s evidence merely because she is an adult who is describing events she says occurred when she was a young child. It would also be an error for me to accept her testimony uncritically. Rather, I must assess her evidence on “a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case”: R. v. W.(R.) , [1992] 2 S.C.R. 122 at para. 25.

[79] While the possibility of a witness’s memory fading or becoming corrupted and unreliable over time is one that must always be considered, the reliability concerns in this case are heightened by T.B.’s frank acknowledgment that she had no memory at all of the alleged sexual assault by her father for most of her life, and that she only now recalls it after experiencing a sudden vivid “flashback” four and a half years ago, in the summer of 2018.

[80] Triers of fact are expected, and indeed required, to use their “common sense” when assessing witnesses’ credibility and reliability. However, “common sense” assumptions must inevitably draw on judges and jurors’ own personal experiences, which are necessarily limited.

[81] A judge or juror who has never personally experienced a “flashback” of a distant traumatic and long-forgotten event may have difficulty accepting that such memories can ever be reliable. Equally, a judge or juror who has not personally had a vivid and seemingly real “memory” of something that demonstrably never happened, or that can be shown to have happened in a different way, might find it highly counterintuitive that human memory can be so unreliable.

[82] For both reasons, judges and jurors who rely on their own “common sense” may have great difficulty accurately assessing the likelihood that a witness who honestly believes in the reality of his or her “recovered memory” might be wrong about this.

[83] I appreciate that in her majority reasons in R. v. François , [1994] 2 SCR 827, McLachlin J. (as she then was) suggested that questions about the reliability of recovered memories can be properly determined by juries without expert evidence, at least in some cases. She held at p. 840 S.C.R.:

This leaves the question of the complainant's memory block in the early 80s and recovery of memory in 1990 – the “flashback”. It is suggested that it was unreasonable for the jury not to have a reasonable doubt about the accused’s guilt given the complainant's evidence that her memory of the assaults by Mr. François had been blocked, only to be revived after discussions with the people at the Children's Aid Society and the police about the importance of “admission on [her] part that things had happened to [her]”. Without pronouncing on the controversy that may surround the subject of revived memory amongst experts, it is sufficient to say for purposes of this appeal that the jury’s acceptance of the complainant's evidence on what happened to her was not, on the basis of the record, unreasonable. The complainant was cross‑examined on the possibility of concoction. She denied the suggestion of cross‑examining counsel that her recovered “memory” was a product of the pressures she was experiencing. Thus explored, the matter was left to the good judgment of the jury. It was open to the jury, with the knowledge of human nature that it is presumed to possess, to determine on the basis of common sense and experience whether they believed the complainant’s story of repressed and recovered memory, and whether the recollection she experienced in 1990 was the truth. To do so cannot be characterized as unreasonable.

[84] I accept that in situations like the case at bar, where neither side has adduced any expert opinion evidence on the science of memory, triers of fact have no choice but to rely on “the knowledge of human nature [they] are presumed to possess”, and apply their “common sense and experience”. However, knowing that I can take this approach without having my verdict automatically treated as “unreasonable” does not make the task any easier. A finding of fact at trial that is not reversible on appeal as “unreasonable” may still be wrong, and cause a miscarriage of justice.

[85] As Marc Rosenberg observed in a 1995 article that he wrote shortly before his appointment to the Ontario Court of Appeal:

Repressed memory challenges the common sense notion that memories become less reliable over time. These memories come flooding back apparently intact accompanied by powerful emotions appropriate to the event and filled with vivid and realistic detail. The very richness of the detail seems to carry its own confirmation of reliability. And if the memories are untrue where did they come from and why are they there? If the memory is not true what possible motive does the witness have for remembering? Common sense and experience do not easily inform these questions.

See M. Rosenberg, “Issues Arising in Criminal Prosecution for Distant Events”, available on QuickLaw as ADGN/RP-005, at para. 24.

[86] In R. v. McGrath, [2000] O.J. No. 5735 (S.C.J.), at para. 11 (citations omitted) , my former colleague Minden J. framed the issue this way.

The trier of fact’s experience and knowledge about human nature and memory may serve to betray rather than guide in cases of this kind … Accordingly, careful scrutiny must be paid to the evidence …

[87] I agree with both of these observations. Although Crown counsel correctly points out the late Justice Rosenberg’s extrajudicial writings are not binding on me, they still command my attention. He was one of Canada’s greatest criminal lawyers and jurists, and his views about the law always deserve serious consideration. Even though his 1995 article is not binding authority, I find myself in substantial agreement with much of what he wrote.

[88] In my view, judges must approach cases involving recovered memories with the criminal burden and standard of proof foremost in their minds.

[89] The basic requirement in criminal cases that the Crown must prove the defendant’s guilt beyond a reasonable doubt always requires inculpatory evidence to be carefully examined. The possibility that witnesses who purport to be remembering distant events may not be doing so accurately always needs to be given serious consideration, even when the witnesses claim to have held their memory continuously in their minds since the time of the remembered events.

[90] In my opinion, the need for caution becomes heightened when, as in this case, a critical prosecution witness claims to have suddenly “recovered” a long-forgotten memory. At the very least, such “recovered memories” are atypical as a matter of everyday experience, which I think calls for them to be given especially close and careful scrutiny.

[91] Neither party in this case presented any expert evidence on the science of memory, and this is not an area where I can properly take judicial notice of indisputable and incontrovertible scientific facts: see, e.g., R. v. B.M., 1998) 353 at para. 105 (Ont. C.A.); D.M. Paciocco, “Judicial Notice in Criminal Cases: Potential and Pitfalls”, 40 Crim L.Q. 35 (1997); R. v. J.M., 2021 ONCA 150. My ability to rely on judicial decisions from cases where expert evidence was called is also limited, since I cannot properly adopt conclusions in those cases that drew on evidence that is not before me.

[92] I also agree with Mr. Robichaud that T.B.’s testimony about what her therapist told her about memory suppression and recovery is admissible only for the limited purpose of explaining why she is now convinced that her recovered memory is real. On the record before me, I cannot properly assess whether anything T.B.’s therapist told her about human memory has any scientific validity.

[93] I am prepared to accept for the purpose of my analysis in this case that at least some recovered memories can be real, and that it is thus possible that T.B. now accurately remembers an event that really did happen to her as child, even though she then “repressed” this memory for more than two decades.

[94] However, I also accept that it is possible that her present memory is a confabulation. My common sense assumptions about how human memory and imagination work do not permit me to draw any firm conclusions about which of these competing possibilities is more likely, or by how much.

[95] However, that is not my task in this case. Instead, the criminal burden and standard of proof requires the Crown to satisfy me that the possibility of T.B.’s recovered memory being false is something I can safely dismiss as having been disproved beyond a reasonable doubt. The Crown will only be able to meet this burden if it can point to evidence that permits me to draw this conclusion.

[96] As my colleague R.P. Campbell J. observed in R. v. A.S., 2021 ONSC 8549 at para. 63:

Corroboration is not a legal requirement for acting on the evidence of a sexual assault complainant: Criminal Code , s. 274. Where, however, concerns arise about the reliability of disputed testimony, corroboration can provide a basis for resolving those concerns and concluding that guilt has been proven beyond a reasonable doubt.

[97] As a practical matter, the Crown will not be able to meet its burden of disproving the possibility of T.B.’s recovered memory of being sexually assaulted being a figment of her imagination unless it can point to some independent evidence that confirms the reality and accuracy of her present memory.

[98] Since I am trying this case without a jury, I do not find it necessary to weigh in on the question of whether a jury trying this case ought to be instructed that it would be “dangerous” to rely on T.B.’s recovered memory without confirmatory evidence, which is an instruction Mr. Justice Rosenberg, as he later became, suggested in his 1995 article, at para. 90.

[99] I agree with Ms. Newhouse that the risk of a witness honestly believing in the reality of a confabulated “recovered memory” is very different in nature from the concerns that motivate a Vetrovec warning, where jurors are instructed that it would be “dangerous” to rely on the unconfirmed evidence of an unsavoury witness. Vetrovec warnings are directed at ensuring that jurors properly take into account the risk that certain witnesses, who judicial experience teaches may not be wholly trustworthy, might be lying. The main concern with these witnesses is usually with their honesty, not their testimonial reliability.

[100] However, the language of “dangerousness” is not unique to Vetrovec cautions, and I do not think that using this word in a jury instruction in a recovered memory case will necessarily be understood by jurors as casting aspersions on the witness’s honesty or integrity. Rather, I agree with the analogy that Rosenberg J.A. drew in his 1995 article between the need for caution in recovered memory cases and the well-established need to carefully scrutinize eyewitness evidence, because of the “inherent danger” of eyewitnesses being honestly mistaken: see, e.g., R. v. Miaponoose. As Rosenberg J.A. stated in his article, at para. 100:

Until more is known about memory about distant events there is an obligation on the courts to proceed with the same degree of caution they exercise in eye-witness identification cases. Such instructions are required whether or not the memory is a “recovered” memory following a period of repression and should be given whatever the subjective impression of the trial judge about the “credibility” of the accusing witness. It is the fact that the witness who appears honest and convincing may be mistaken which requires that the warning be given.

[101] There is no absolute rule that jurors in eyewitness cases must be specifically told that it would be “dangerous” to rely on unconfirmed eyewitness identification evidence. What matters is that the risks of eyewitnesses being honestly mistaken, and unable to recognize their own errors, are adequately explained to the jury. I agree that this can be done without specifically referring to these risks as “dangers”: see, e.g., D. Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), Final 32. However, I also do not see anything inherently wrong with using the word “dangerous” when instructing a jury about these risks.

[102] Equally, I am not persuaded that it would necessarily be wrong to tell a jury that it would be “dangerous” to accept a witness’s recovered memory without some form of confirmation, although also I tend to think that the key point can also be made using alternative language.

[103] For the purpose of my own analysis, sitting without a jury, I think it is sufficient that I instruct myself that I must be satisfied beyond a reasonable doubt that T.B.’s recovered memory is true, on the evidence as a whole, before I rely on it to find B.B. guilty. The criminal burden and standard of proof requires no less.

2. Factors bearing on the reliability of T.B.’s recovered memory

[104] Having framed the question that I must consider, I will now examine the evidence that bears on the reliability of T.B.’s present memory that she was sexually assaulted by her father on a single occasion when she was around 11 years old.

[105] I will reiterate at the outset that there was nothing about either the substance of T.B.’s evidence, or the manner in which she gave it, that makes me question her sincerity. I am satisfied that she now honestly believes that her present memory, as she described it in her trial testimony, is a true recollection of an event that she is now convinced really happened.

[106] However, I think T.B.’s subjective belief that her recovered memory is a true one is only marginally probative when it comes to assessing its objective reliability. If T.B. were herself unsure whether her memory is a figment of her imagination, this would make it even more difficult for me to dismiss this possibility as having been disproved beyond a reasonable doubt. However, I do not think that I can treat her subjective confidence in the accuracy of her memory as making it significantly more likely that her memory is true, in much the same way that eyewitnesses’ confidence levels do very little to bolster the reliability of their identification evidence.

[107] I appreciate that in the eyewitness context “the very weak link between the confidence level of a witness and the accuracy of that witness” (R. v. Hibbert, 2002 SCC 39 , [2002] S.C.R. 445 at para. 52) is well-supported by scientific research, which has become generally accepted and about which courts now routinely take judicial notice. See, e.g., P. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation . Winnipeg: Manitoba Justice, 2001.

[108] I do not think it is appropriate for me to similarly take judicial notice of the scientific research concerning memory storage and retrieval generally. However, in the absence of any clear affirmative evidence that a witness’s subjective confidence in the accuracy of his or her recovered memory serves as a hallmark of its reliability, I am not prepared to assume that any such correlation exists.

[109] It is also clear from T.B.’s own testimony that her present confidence in the accuracy and reliability of her recovered memory has been significantly bolstered by the therapy she received after her 2018 flashback. She evidently now believes her memory to be a true one in part because her therapist has convinced her that recovered memories exist, and that hers is real. This makes me even more doubtful that T.B.’s confidence in the accuracy of her memory should be given any weight.

[110] I am also not persuaded that the level of detail T.B. now purports to remember about the alleged bedroom sexual assault is something that ought to increase my confidence that she is remembering a true event. There is no evidence before me that a confabulated “recovered memory” cannot be as richly detailed as a true recovered memory, if not even more so. On the record in this case, it would be sheer speculation for me to treat the level of detail in T.B.’s present memory as an indicator of its reliability.

[111] There are three additional reasons why I am not prepared to draw this inference.

[112] First, much of the peripheral detail of T.B.’s memory of the sexual assault, such as the detailed description she gave of the layout of her parent’s bedroom, is information she would presumably have known regardless of whether her present recollection of the assault itself is a true memory or a confabulation.

[113] T.B. and her family lived in the house for several years, and there is no reason to think that she ever blocked out from her conscious mind what her parents’ bedroom looked like, as she now believes she did with her memory of the alleged incident itself. While I accept that T.B.’s description of the bedroom is very likely accurate – she was not challenged about it in cross-examination, nor did B.B. contradict her description – I do not think this sheds any light on the critical question of whether her memory of the sexual assault itself is a true memory or a confabulation. If T.B.’s mind has unconsciously constructed an imagined event and situated it in her parent’s bedroom, it seems entirely plausible that the confabulation would incorporate her actual memory of the bedroom’s layout.

[114] Second, the level of detail of T.B.’s present memory of the alleged sexual assault stands in marked contrast to her generally poor memory of other events, including some that were considerably more recent.

[115] Many witnesses are able to remember the timing of milestone childhood events, such as moving to a new home, by calling up associations with other significant details of their lives, such as the grade they were in at school at the time. Moreover, witnesses will frequently have done this type of mental exercise many times before they testify in court, thereby cementing the timeline in their minds.

[116] However, T.B. had notable difficulty doing this. Perhaps most significantly, she had problems remembering how old she was when her parents separated, after which she and her mother and sister moved from their house to an apartment. She suggested at different points in her evidence this might have happened when she was anywhere from 11 to 14 years old, before settling on a narrower age range in which she was either 11 or 12. As a matter of common sense and everyday experience, I found it surprising that she could not identify more precisely the timing of what would plainly have been a very significant childhood event.

[117] T.B.’s memory of more recent events was also noticeably poor. For instance, while she remembered leaving her twins with her father and stepmother when she and her husband went to Toronto to attend a baseball game in the fall of 2018, she initially testified that she positively remembered that they came home the same night, before acknowledging in cross-examination that they could have stayed overnight in a hotel in Toronto, and that she does not recall one way or the other. Since this happened only four years ago, and would presumably have been memorable since it was the first time she and her husband had spent a night away from their twins since they were born, I found it mildly surprising that T.B. seemingly could not summon a clear memory of the event to her mind.

[118] She also had difficulty remembering the timing and details of her phone communications with her father about her sexual assault allegation, and forgot that she had showed her letters to her therapist before sending them until she refreshed her memory by reviewing her police statement.

[119] While I do not consider T.B.’s inability to recall these details to be overly significant, I was left with the overall impression that her memory is quite poor in general. This makes me especially wary about treating her seemingly vivid present recollection of the sexual assault as an indicator of the reliability of this purported memory. It is conceivable that T.B. recalls the sexual assault more clearly than she remembers many other more recent events because the process of repressing this memory and then recovering it has somehow caused it to be better preserved. However, it also seems possible that her “flashback” was unusually vivid and detailed because it is not a true memory at all, but a confabulation that her brain has unconsciously constructed. My own common sense and personal experience does not enable me to choose between these alternatives in any analytically rigorous way, and there is no other evidence in the record that might assist me in doing so.

[120] Third, I must be mindful of the possible contaminating effect on T.B.’s memory of the passage of time and the therapy she received. Although T.B. testified that her memory of the sexual assault now is identical to the vivid memory that first sprang into her mind in July 2018, there is no independent evidence confirming this. I am inclined to accept that her central recollection of her father putting his arm around her while lying beside her in bed and touching her chest may not have changed significantly since her initial July 2018 flashback. However, I have no way to assess whether any of the details she now purports to remember are ones that could have been added to her memory during the ensuing four years, as she replayed the memory in her mind and discussed it with her therapist.

[121] To be clear, I am not suggesting that T.B.’s in-court testimony would be bolstered if she had made a prior consistent statement before she started therapy. However, such a statement would have been admissible “to show that the details were not added after the point in time suggested by opposing counsel”: R. v. Khan, 2017 ONCA 114 at para. 28, per Hourigan J.A.; see also para. 65, per Doherty J.A. (concurring).

[122] Put simply, I am not confident that T.B.’s present memory of what she recalled in the 2018 flashback is necessarily reliable, especially since I have concerns about the quality of her memory generally. This gives me a further reason to be wary about treating the level of detail of her present memory as an indicia that it is a true and reliable memory.

[123] The Crown argues that it would be speculative for me to conclude that T.B.’s memory has been corrupted by the passage of time and the impact of her therapy. I agree that unlike some recovered memory cases, there is no significant concern in this case that T.B.’s entire memory of the alleged sexual assault could be a product of therapeutic suggestion. I accept her evidence that it was the disturbing flashback she first experienced on the 2018 Canada Day weekend that led her to seek therapy in the first place.

[124] However, T.B.’s own evidence was that before she received therapy she “questioned how [she] could remember it”, and that her therapist “worked with [her]” and “ma[de] [her] understand how that had possibly happened”. I think it is entirely possible that this process not only solidified T.B.’s belief that her memory is real, but may have also led to her adding new details to her present recollection, without now realizing that she has done this.

[125] While I agree with the Crown that it would be speculative for me to positively find that this is something that happened, it is not the defence’s burden to affirmatively prove that T.B.’s recollection has been corrupted or tainted by her therapy. Rather, the Crown must satisfy me that this is not a significant concern, as part of its overall burden of persuading me beyond a reasonable doubt that T.B.’s recovered memory is reliable.

[126] To sum up, this was a two-witness case. The evidence in the record all comes from either T.B. and her father, in the form of their in-court testimony and their out-of-court written communications in the spring and summer of 2020.

[127] T.B.’s own prior statements in 2020 are obviously not capable of confirming the reliability of her recovered memory, either as a matter of law or logic.

[128] However, the Crown’s main argument, to which I will now turn, is that B.B.’s own statements to his daughter in 2020, despite being exculpatory on their face, can be used for this purpose.

C. Do B.B.’s statements to his daughter in 2020 confirm the reliability of T.B.’s recovered memory?

[129] As a starting point, I agree that evidence confirming the accuracy of a complainant’s recovered memory can emanate from the accused. If B.B. had reacted to T.B.’s sexual assault allegation by making a full confession in which he admitted doing what she alleged, this would obviously allay my concern that her recovered memory might be a confabulation.

[130] However, B.B. did not do that. His text message and subsequent letter to T.B. are both exculpatory on their face.

[131] In his June 14, 2020 text message, he stated that he “honestly [did] not remember the incident you spoke of”. In his subsequent letter he reaffirmed that he “still [did] not remember this incident”, and added that he would not have “intentionally” done anything to hurt her. B.B. also took issue with T.B.’s use of the term “assault”, on the grounds that an assault must be intentional, and reiterated:

T.B., I have never had intentions to hurt you or [D.B.] in any way and have never had any sexual thoughts about you or [D.B.] in my life. I’m your father and I love you only as a father would love his children.

[132] At the same time, B.B. also made a point of emphasizing that he was “not saying this incident did not happen to you”, stating instead that he was “saying that I do not agree with the label you have on me”.

[133] For the Crown, Ms. Newhouse argues that an innocent person in B.B.’s position would have expressed his denial to T.B. in less uncertain terms. As she put it in her submissions:

The logical thing, if you queried a thousand people on the street, common sense dictates that you would say: “I never did this, accidentally or intentionally”.

[134] Ms. Newhouse also emphasizes that when she suggested to B.B. in cross-examination that the “best way to make [T.B.’s] pain go away would be to make clear that [the incident] did not happen”, he agreed with this suggestion.

[135] Stripping this argument to its essentials, the Crown seeks to have me treat B.B.’s statements to his daughter as inculpatory, and thus confirmatory of her recovered memory, on the grounds that they were not exculpatory enough.

[136] For multiple reasons that I will now explain, I do not find the Crown’s argument persuasive.

[137] First, I do not agree with Ms. Newhouse’s contention that there is a fundamental contradiction between a witness denying that something happened, and the witness asserting that he or she does not remember it. On a literal level, no one who gives evidence about a non-event can ever do more than speak to its non-existence from their present memory.

[138] In oral argument, Ms. Newhouse drew an analogy with the distinction between a complainant who affirmatively says that she did not consent to sexual activity, and one who has experienced a blackout but says that she believes she would not have consented (see, e.g., R. v. Garciacruz , 2015 ONCA 27). In my view, this analogy is inapt. Someone who testifies that he or she remembers sexual activity occurring without his or her consent is giving evidence about a positive event, not describing a non-event.

[139] However, when witnesses say that something never happened, the most they can ever really do is say that they have no memory of it happening. Although they might be able to go further and explain why they think they would remember the event if it had happened, or why they are confident that they or some other person would not have done some particular action, the most they can ever really say is that they have no memory of the event, and that this is why they believe that it did not happen. Indeed, witnesses who refuse in cross-examination to admit that it is at least possible that something they cannot remember might have happened are routinely accused of being unduly rigid and dogmatic.

[140] In this regard, in B.B.’s written communications with his daughter he did not merely state that he had no memory of the incident she was describing. Rather, he tried to explain why he would not have ever intentionally touched T.B. in a sexual manner.

[141] I agree that his text message and letter can be read as deliberately crafted to preserve the possibility that he might have touched T.B. accidentally in a manner that she was now wrongly interpreting as sexual. I also recognize that at trial he was adamant that he never touched his daughter’s nipples accidentally. However, as I will discuss later, I am not satisfied that B.B. knew when he wrote his text message and letter that T.B. was specifically alleging that he had touched her breasts or nipples.

[142] Second, I acknowledge that there is some force to Ms. Newhouse’s argument that as a matter of common sense and everyday experience, one might expect most innocent parents who are accused of sexually assaulting a child to make a categorical denial, even if it might be more literally accurate for them to say that they do not remember the alleged incident. However, I must be careful not to improperly measure B.B.’s actions against a stereotypical standard of how I think an innocent person ought to behave. As Paciocco J.A. explained in R. v. J.C., 2021 ONCA 131 at para. 63 (citations omitted, emphasis added):

[F]actual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility … It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act …

[143] It would be an error of law for me to reject B.B.’s exculpatory statements and evidence on the basis that I think he made his denials with insufficient vigour. It would in my view be an even graver error for me to twist his words, and reinterpret his facially exculpatory statements as if they were inculpatory, on the basis that they fall short of what I imagine an innocent man ought to have said in the circumstances.

[144] Third, as I have already mentioned earlier, I am not satisfied on the evidence as a whole that B.B. knew when he wrote his text message and letter that T.B. was specifically alleging that he had touched her breasts and/or nipples.

[145] T.B. and B.B. gave conflicting evidence on this point. She testified that during one of their initial telephone conversations after she sent her first letter, she told B.B. what she remembered about the bedroom incident in “similar” terms to how she testified about it in court, where she had described in detail how her father had touched her nipples simultaneously with the fingers of one hand.

[146] However, B.B. disputed that T.B. told him this much. He testified that he only remembered T.B. telling him that she recalled him putting his hand up her shirt, but not that he had touched her breasts or nipples.

[147] I am not satisfied that either B.B. or T.B.’s recollection of their telephone conversations are reliable. B.B. testified that he only remembered talking to T.B. in a Facetime video call on Saturday, June 13, 2020. I think that he may be mistaken that this was the first phone conversation they had, since it is clear from their June 10 and 11 text message exchange that they had been communicating in some fashion before June 10, although it may be that they did so through some other medium, such as Facebook private messages that were not preserved or presented at trial.

[148] On the other hand, as I have already discussed, I am generally unimpressed with T.B.’s ability to accurately recall relatively recent events. Her memory of her phone conversations with her father were notably vague in other respects. She could not remember how many conversations they had, or when they took place.

[149] Considering all of the evidence, I am not confident that T.B. is correct when she says that she now remembers telling her father the full details of her recovered memory over the phone. At the very least, I am unable to reject B.B.’s evidence that he came away from their phone conversation, or perhaps conversations, not understanding that she was alleging that he had touched her breasts or nipples.

[150] If B.B. did not know this when he wrote his text message and letter, and believed only that T.B. was saying that his hand had come up under her shirt, I think this makes it much easier to understand why he focused as he did on denying any intentionality or sexual purpose on his part. If T.B. had merely been alleging that B.B.’s hand had come up under her shirt at some point after she got into bed next to him, it would have strained credulity for B.B. to have categorically denied that this was even possible.

[151] Fourth, I think B.B.’s guarded and carefully-worded written responses to his daughter’s allegation must be read in the full context of their communications back and forth.

[152] Importantly, T.B. first made her sexual assault allegation to B.B. in the wake of the heated telephone argument they had had over her disparaging Facebook posts about B.B.’s wife’s relatives. A recurring theme in both T.B.’s own letters and texts, and in her evidence about their phone conversations, is that she felt that her father and his side of the family were “disrespecting” her, and that she would not stand for this.

[153] In this context, I think it would be entirely reasonable for a person in B.B.’s position to expect that T.B. would not react well to his dismissing her memory of the alleged sexual assault as a phantasm or delusion.

[154] On the other hand, in her first letter T.B. expressly offered her father safe passage if he did not challenge the reality of her allegation, but merely denied having any memory of the incident. She told him (emphasis added):

The person who had sexually assaulted me was you, Dad. You may not remember it and that’s okay but I do and that’s all that matters .

In my view, it is hardly surprising that B.B. took up this invitation in his responses, repeatedly stating that he had no memory of what T.B. was talking about and denying any malign or sexual intent, but stopping short of challenging the truth or accuracy of T.B.’s memory.

[155] Indeed, the impression that T.B. would not take kindly to any suggestion by her father that her memory was false or mistaken would, I think, have been reinforced by their text message exchange and by her second letter, during which she laid out her position that “any type of disrespect” from him would be a “deal breaker” to their having any sort of ongoing relationship. T.B. also made it clear that she considered B.B.’s sister’s message questioning the veracity of her allegation as “hurtful and disrespectful”, and that she viewed it as sufficient cause for her to permanently cut off all future contact with her father’s side of the family. In my view, B.B.’s emphasis in his own letter that he was “not saying this incident did not happen to you” must be read in this context.

[156] A main thrust of Crown counsel’s argument, both in her cross-examination of B.B. and in her submissions, is that B.B.’s acknowledged interest in helping his daughter “heal” ought to have led him to expressly try to persuade her that her memory of the sexual assault was a confabulation. As Ms. Newhouse put it in her oral submissions:

I do think as a matter of pure common sense, that a father, and especially a father who not only in court says, but his letter says, “I want to help you heal, I want to help you, I want to go to therapy with you …”. My suggestions to him were rooted in that entire common sense proposition that the best way to help her would be to get to the truth, which is “I didn’t do this”. Was it someone else? Are you psychotic? Is there something else we should be exploring?

[157] In my view, it strains credulity to think that someone in B.B.’s position would have imagined that it would be useful to suggest to T.B. that she might be “psychotic”, or that doing so would have contributed to her “healing”. Indeed, Ms. Newhouse fairly acknowledged that “of course it did not have to be said in those words”.

[158] In my view, the broader point is that even if I were to accept Ms. Newhouse’s view that if B.B. is innocent the best thing for both of them in the long run would be for T.B. to be persuaded that her recovered memory of him sexually assaulting her is a figment of her imagination, I do not think it follows that he ought to have been expected to try to achieve this goal by mounting a frontal assault on what T.B. described at trial as “her truth”.

[159] I appreciate that when Crown counsel pressed B.B. about this issue in cross-examination, he eventually agreed with Ms. Newhouse’s suggestion that it would have facilitated T.B.’s healing for him to try to convince her that her memory of the sexual assault was a confabulation. However, I am entitled to accept some, all, or none of B.B.’s evidence, and I do not think his agreement with this particular suggestion by the Crown was well-considered. I doubt very much whether a reasonable person in B.B.’s position would have thought it wise to take such a confrontational approach, and I do not accept that B.B. really did think at the time that this was a good idea.

[160] Fifth, the Crown’s position that B.B.’s written communications with his daughter can and should be treated as confirming the reliability of her recovered memory demands that I read his seemingly carefully chosen words as containing a hidden subtext that makes them mean something entirely different from what they actually say.

[161] That is, the underlying logic of the Crown’s argument is that I should infer that when B.B. said that he had no memory of the alleged incident, he was choosing to make such a qualified form of denial because he really did remember it. The Crown wants me to then infer further that B.B.’s supposed memory of the incident confirms that T.B.’s recovered memory is real and accurate.

[162] However, B.B.’s text message and letter can also be taken at face value and read as meaning what they say. I think it would be an insupportable leap of logic for me to dismiss what B.B. said in his text message and letter as false, and on this basis treat his words as meaning the opposite of what they actually say.

[163] I appreciate that B.B. testified at trial that he immediately knew that nothing like what T.B. was alleging had ever happened. However, I am not satisfied that his memory of what he was thinking when he wrote his text message and letter in the spring and summer of 2020 has not been distorted by what he now knows about T.B.’s allegation, which on his own evidence he says he did not fully understand at the time.

[164] B.B.’s evidence, which I cannot entirely reject, is that when he wrote his text message and letter he knew only that his daughter was alleging that he had put his hand up her shirt, but did not know that she was accusing him of touching her breasts or nipples. I think it is at least reasonably possible that when he wrote his text message and letter he was subjectively open to the possibility that he could have put his hand up her shirt accidentally, even though his position and/or his recollection has now solidified into an adamant denial that even this could never have happened.

[165] Finally, I think the Crown’s argument has the potential to subtly reverse the burden of proof.

[166] The text message and letter that B.B. sent to his daughter in the spring and summer of 2020 are facially exculpatory, as is his trial testimony. To the extent that there is any real difference between them, it lies in his present confidence that the incident T.B. describes could not have happened. I have already explained why I am not persuaded that this is necessarily inconsistent with his previous openness to the possibility that what she was describing could have happened, given my lack of confidence that he knew then what he now knows about her allegation.

[167] However, even if I were to find B.B.’s unambiguous denial at trial to be somehow inconsistent with his arguably more qualified denials in his written communications with his daughter, the most I could do would be to entirely disbelieve both his written and in-court denials. I could not properly treat my disbelief of his denials as affirmative evidence of his guilt, since in my view the difference between them, to the extent there is any, is too subtle to properly support the inference of “concoction”: e.g., R. v. O’Connor .

[168] If I were to conclude that none of B.B.’s in-court or out-of-court exculpatory statements deserve any weight – which, I should emphasize, is not a conclusion I have actually reached – the only evidence I would be left with would be T.B.’s own testimony about her recovered memory. As I have already explained, T.B.’s own evidence presents significant reliability concerns that I would not be able to entirely dismiss.

[169] In essence, the Crown is seeking to have me treat my disbelief of B.B.’s exculpatory written statements and in-court testimony as a makeweight that bolsters T.B.’s evidence and bridges the evidential gap in the prosecution’s case. In my view, it would be an error in principle for me to take this approach, even if I did entirely disbelieve and reject B.B.’s exculpatory evidence.

D. The W.(D.) analysis

[170] I will conclude by summarizing my factual conclusions by examining the evidence through the lens of R. v. W.(D.) , [1991] 1 S.C.R. 742. In his oft-cited judgment for the Supreme Court of Canada, Cory J. set out a three-part approach by which triers of fact can apply the criminal standard and burden of proof to cases involving conflicting prosecution and defence evidence. Under the W.(D.) formulation:

i) I must find B.B. not guilty if I accept his denial that he ever touched T.B. in the sexual manner she alleges;

ii) Even if I do not accept his denial, if his testimony, considered in light of all of the other evidence, leaves me with a reasonable doubt about his guilt, I must find him not guilty;

iii) Even if I entirely reject his denial as wholly incredible, I must consider whether the evidence that I do accept satisfies me of his guilt beyond a reasonable doubt.

[171] It is worth emphasizing that the W.(D.) approach is not a talismanic formula that must be slavishly followed in every case, nor it is an independent principle of law. Rather, it is simply an often useful way of capturing and explaining the practical application of the core principle that the Crown must prove a criminal defendant’s guilt beyond a reasonable doubt.

[172] In the circumstances here, I find it more useful to go through the three W.(D.) stages in reverse order.

[173] On all the evidence, although I find T.B. to be a credible witness, I am not satisfied that her recovered memory of being sexually assaulted by her father when she was around eleven years old is reliable.

[174] T.B.’s recollection may possibly be a true memory that she suppressed for more than twenty years before it suddenly came back into her conscious mind as a vivid flashback in 2018. However, it is also possible that her “recovered memory” is a confabulation that she has erroneously now come to believe is a true memory.

[175] On the evidential record before me, I am completely unable to quantify the likelihood of either of these competing possibilities being correct. My common sense about how memory works, which is both informed and constrained by the limits of my own personal experience, does not equip me to make an analytically sound assessment of this issue. Any conclusions I purported to reach would be no better than guesses.

[176] There is also no objectively reliable evidence that I can use to conclude that T.B.’s recovered memory must be true and reliable, and to dismiss the possibility that it might instead be a confabulation beyond a reasonable doubt. As I have already explained, I am not satisfied for multiple reasons that B.B.’s exculpatory written statements to his daughter are capable of bridging this evidential gap, as a matter of either law or logic.

[177] It follows that I cannot be satisfied of B.B.’s guilt beyond a reasonable doubt, even before I consider his exculpatory testimony.

[178] I also cannot entirely reject B.B.’s testimony that he never sexually assaulted his daughter. As I have already explained, I do not think his uncategorical denials at trial are necessarily inconsistent with the qualified but still exculpatory statements he made when he wrote to his daughter in the spring and summer of 2020, since I am not satisfied that he knew then what he knows now about the details of her allegation. There is nothing about the manner in which he testified that would give me cause to reject his testimony beyond a reasonable doubt, nor is there anything about the substance of his denial that is inherently unbelievable.

[179] This is not also a situation where I find T.B.’s evidence so compelling that I am obliged to reject B.B.’s exculpatory evidence “despite the absence of any obvious flaws in it”: see R. v. J.J.R.D., 2006). To the contrary, as I have already explained, I am not satisfied that I can accept T.B.’s evidence as reliable even without taking B.B.’s exculpatory testimony into account.

[180] However, I would not go so far as to say that I affirmatively believe B.B.’s denials, such that I would have to acquit him under the first branch of W.(D.) . To the limited extent that meaningful assessments of credibility can be made from witnesses’ testimonial demeanour, he and his daughter both came across as credible witnesses. My concerns about T.B.’s evidence arise from my doubts about the reliability of her recovered memory, rather than from any reservations about her honesty.

[181] In summary, I think it is possible that T.B.’s recovered memory is a true one, and that B.B. is either lying, or perhaps being genuinely forgetful, when he denies that he sexually assaulted his daughter. However, I think it is also entirely possible that his denial is both honest and accurate, and that T.B.’s recovered memory of the sexual assault is a figment of her imagination, albeit one that she now wholeheartedly believes to be the truth.

[182] On the evidence as a whole, I am not satisfied that I can decide between these options even on a balance of probabilities, let alone make this determination in favour of the prosecution on the far higher criminal standard of proof beyond a reasonable doubt.

IV. Disposition

[183] It follows that I am left with a reasonable doubt about B.B.’s guilt, and I must acquit him of the single charge against him. A verdict of “not guilty” will be entered on the indictment.

The Honourable J. Dawe

Released: January 20, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – B.B. REASONS FOR JUDGMENT The Honourable J. Dawe

Released: January 20, 2023