WARNING

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

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

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

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

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

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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

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

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

Court Information

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

L.B., a young person

Before: Justice M.H. Bloomenfeld

Heard: June 19, 2012

Oral Reasons for Judgment: Released July 31, 2012

Written Reasons for Judgment: Released August 1, 2012

Counsel:

• Ms. Monteiro, for the Crown
• Mr. Rabinovich, counsel for the accused L.B.

Judgment

Bloomenfeld J.:

Overview

[1] The complainant alleged that her uncle sexually assaulted her on several occasions when she was a young child by forcing her to perform fellatio on him. The allegations spanned from January 1, 1994 through January 1, 1996. During those years, the complainant would have been four or five years old and the accused would have been a teenager. At the time of trial, the complainant was 22 years old and the accused was 31.

[2] The evidence at trial consisted of the testimony of the complainant, her mother, to whom she ultimately disclosed the allegations, and the accused himself. Only the complainant and the accused gave direct evidence of what occurred between the two of them. Although the accused agreed that he and the complainant spent time together when she was a young child, he denied any sexual or inappropriate contact.

Summary of the Evidence of the Complainant

[3] The accused was the complainant's father's half-brother. When she was a young child, her father lived at home with his own father, his step-mother and his brothers, including his half-brother the accused. The complainant's parents were separated so she would be dropped off for regular visits with her father at his parents' home.

[4] The accused was significantly younger than the complainant's father and other brothers so he was the one to whom the complainant naturally gravitated. The complainant testified that the accused would often be in the basement because it had a recreation room and a computer room. On approximately three to six occasions, the accused asked the complainant if she would like a treat or some candy and then proceeded to have her perform fellatio on him. The complainant was uncertain exactly how many times this happened or when the first incident occurred. She was at the accused's home very often over a three or four year period. The incidents were spread out but the complainant was unable to say how much time passed between the individual events.

[5] The complainant's two most vivid memories of the allegations were one incident in the computer room and another one in the recreation room. Both of these rooms were in the basement of the accused's house. There were also other occurrences but these were the two that were most vivid in the complainant's recollection.

[6] The complainant testified that the "computer room incident" happened while the accused was seated on the chair at the computer. The complainant was sitting on something beside him. The complainant also recalled that the lights were on at first but they got turned off somehow, possibly by her. The door to the room was midway open. She and the accused were surfing on the computer. The accused asked the complainant if she wanted some candy. Somehow the complainant found herself on her knees with the accused sitting on the chair in front of her. The accused told the complainant to close her eyes and tighten her lips. He also instructed her not to open her eyes while it was happening. The complainant obeyed this instruction most of the time but she did peek once because things did not seem right to her. She thought to herself, "if this is candy, why can't I open my eyes"? When she peeked, the complainant saw the accused's stomach and pelvic area. She did not recall his hands on her or her hands on him. They were not alone in the house so it did not last very long. While she had no memory of the accused ejaculating, the complainant did remember the scent of semen or, as she explained more explicitly in her cross-examination, "pre-cum." Although the complainant could not identify the year or season in which the incident occurred, this was a memory that she had always had in her head while growing up.

[7] The rec room incident followed a similar pattern. The rec room was a much more open area than the computer room. The accused lay on the sofa while the complainant sat on the floor. They were playing some sort of Nintendo video fighting game. The complainant was watching and the accused was playing and also kind of teaching the complainant how to play. Again, the accused offered the complainant some candy and told her to keep her eyes closed and her lips tight. The accused got off the couch to stand in front of the complainant. She did not recall if the accused took off his pants but remembered that he was "exposed." When they heard her step-grandmother Victoria coming downstairs, the accused seemed startled and quickly rushed and got back under the covers and acted like nothing had happened. By "covers," the complainant meant a sheet that was on the couch. The accused did not push the complainant away, they just separated. At the time, the complainant felt that this was not right somehow.

[8] On the issue of identity, the complainant was certain that it was the accused who was the perpetrator as opposed to one of her other uncles that lived there. The certainty came from her own memory and also the difference between the accused's distinctive hairstyle and her other uncles' hair. One uncle was bald and the other one kept his hair "low." Only the accused had braids on the top of his head. Customarily, he would have his hair braided on top and shaved on the sides. This was very similar to the hairstyle that the accused wore in court during his trial.

[9] The complainant's evidence about the accused's hairstyle was confirmed by her mother, who testified that she had seen the accused at her workplace in Brampton in recent years. By some fluke, the accused was working there too. At first the mother did not recognize the accused but then she looked again and realized that it was him and that he was wearing the same hairstyle he had had when he was younger.

[10] The complainant was adamant that the perpetrator could not have been her grandfather or a different uncle. She explained that her relationship with the accused was different from her relationships with the other uncles. He was younger so it was natural that she would "stick around" him. As well, the complainant remembered one of the other uncles as always studying because he wanted to be a doctor and the third one who lived there as never really having that kind of relationship with her.

[11] The complainant stopped going to her father's house sometime between the ages of 10 and 12 but the incidents ended before then. After that, the last contact she had with that side of the family was at her grade 8 graduation. The complainant did not discuss these incidents with anybody at the graduation event and comfortably talked to everybody there. According to the complainant's mother, the complainant was acting "weird" at the graduation. The mother never elaborated on what she meant by "weird," nor did she provide any specific information that might link her observations of the complainant's behaviour with the alleged abuse.

[12] The complainant did not tell anybody about the abuse while it was happening. She testified that she knew the entire time that it was wrong. She felt embarrassed, ashamed and dirty. She did not understand why this had happened or how to tell people. The first person she told was her best friend when she was eight or nine years old. The next person she talked about it with was a boyfriend and she also told a counsellor in high school.

[13] In 2007, when she was 17 or 18 years old, the complainant disclosed the abuse to her mother. It had always been a burden to her, especially since she and her mother were very close. She explained that she finally decided to confide in her mother because they were in Jamaica with her natural grandmother and reminiscing and it weighed heavily on her so she took her mother aside and told her about it. She wanted to come clean.

[14] According to the complainant, her mother did not blame her but was angry that it had taken so long to come out. When they returned to Canada, the mother contacted the complainant's father and step-grandmother. The complainant and her mother were not interested in going to the police. All they wanted was to sit down as a family and talk about it and have the accused apologize. Instead, the accused's father said that was delusional and disowned her. Her step-grandmother responded by indicating that "they would get their lawyers." The complainant went to the police in 2009 because her grandmother died and she realized that the rest of the family would never come to her, so she had to either go to the police or live with it. They had known all along that what had happened was illegal. The mother had told the complainant to go to the police since the beginning but the complainant did not want to. She preferred to try to deal with it as a family.

Summary of Evidence of the Mother

[15] The mother confirmed that she first heard about the allegations on the trip to Jamaica as described by the complainant. She did not replicate the exact language used by the complainant to describe the complaint because she stopped the complainant from actually sharing the details. She felt that she just could not handle hearing them. The mother also described informing the accused's father and step-grandmother when they got home to Canada and their disbelief of the allegations. Like the complainant, the mother explained that they had decided not to approach the police because they did not see how that would provide the healing and closure that the complainant needed. They only went to the police when the accused and his family refused to respond. The mother testified that she had read books on the topic and believed that full healing from abuse requires closure. This evidence did not correspond precisely with the complainant's recollection that the mother had wanted to approach the police from the beginning. Nevertheless, the general tenor of the mother's testimony confirmed that of the complainant, in that she supported the idea of trying to deal with it as a family first and not going to the police until she was convinced that the accused's family was not going to acknowledge what had happened.

[16] The mother recalled having two conversations about the allegations with the complainant's father. In one of those conversations, the mother made a comment that the accused would have to pay for this because the complainant needed closure. The complainant's father assumed that the mother was looking for money, because the mother had referred to how Michael Jackson had had to pay when he sexually abused a child. The mother clarified in her evidence that she was referring only to closure, not actual monetary payment. Indeed, the mother stated that she was unaware that Michael Jackson had even paid any financial compensation.

Summary of Evidence of the Accused

[17] At age 31, the accused still lives with his parents in the house where the assaults were alleged to have taken place. He confirmed much of the complainant's evidence, including the identity of the residents at the house during the time frame of the allegations, the layout of the house, the complainant's regular access visits with her father and the fact that she and the accused would spend time together. The accused said that he and the complainant would watch television, particularly her favourite show "Inspector Gadget." Most of the time they would use the television in the living room upstairs but sometimes they would watch in the basement. He had no specific memory of using the computer with the complainant but agreed that this was possible. Similarly, the accused confirmed the complainant's recollection of a Nintendo gaming system in the basement with a fighting game on it, although he was not able to expressly recall whether he played the game with her.

[18] The accused flatly denied ever touching the complainant inappropriately, taking off his clothes, closing the door, turning out the lights, pretending to offer her candy or forcing her to perform fellatio. He said he never put his penis in or near the complainant's mouth. Essentially, the accused denied any and all impropriety.

Legal Framework

[19] As in every case where the result depends on the credibility assessment of the witnesses, the court must apply the analytical framework set out by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742, at paragraph 28. In this case, that analysis requires that:

• If I believe the testimony of the accused, I must acquit;
• If I do not believe the accused's testimony but am left with a reasonable doubt by it, then I must acquit;
• Even if I am not left with a reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the accused's guilt.

[20] In applying this analytical template to this case, I must also take into account the fact that both the accused and the complainant are describing events that took place many years ago when the accused was a teenager and the complainant was a very young child. I appreciate that, at the time that the evidence was given in court, both parties were adults and therefore their court testimony should not be appraised in exactly the same manner in which a child's evidence would be analyzed. Nevertheless, it must be acknowledged that the events that the complainant recounted would have been perceived and remembered from the perspective of a young girl. Accordingly, the main principles governing the assessment of children's evidence established in the seminal cases of R. v. W.(R.) and R. v. B.(G.) are relevant and applicable to the instant case.

[21] As the jurisprudence indicates, it is generally inappropriate to apply adult tests for credibility to the evidence of children. Flaws in a child's evidence do not necessarily have the same effect as similar flaws in an adult's evidence. In particular, as noted in B.(G.), "[w]hile 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." At the same time, it is mandatory to avoid applying a lower level of scrutiny to a child complainant's credibility and reliability than to that of an adult. As observed by the British Columbia Court of Appeal in R. v. Horton, "[t]he mere fact that the witness is a child does not mean that inconsistencies or inaccuracies lose their significance."

Credibility Assessment of the Accused

[22] The accused and the complainant confirmed each other's testimony in several material respects on the topics of when they may have been alone together, the layout of the house and the nature of their relationship at the relevant times. As conceded by Crown counsel, there was nothing in the accused's flat denial of sexual or any other impropriety that reflected poorly on his truthfulness or reliability. His testimony contained no significant internal or external inconsistencies and was delivered in a seemingly candid and straightforward manner. Further, there was nothing inherently unreasonable or incredible about the content of the accused's version of events. His description of playing video games and watching "Inspector Gadget" on television are two examples of various details that suggested a truthful rendition of blameless, pedestrian activities and time spent with the complainant. Indeed, during submissions Crown counsel was not able to articulate anything in the accused's testimony which should lead me to reject his evidence.

[23] In many cases, this type of favourable credibility analysis of the defence evidence would end the matter. If I do not reject an accused's version of events on the basis of perceptible flaws within his or her testimony then application of the first or the second branch of the W.D. test could mandate an acquittal. However, to always and invariably acquit an accused solely because his testimony has withstood cross-examination and betrays no internal or external flaws, improbabilities or inconsistencies would be legally incorrect. The court is entitled, in appropriate cases, to reject an accused's evidence and "barren denial" of allegations on the basis of a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting evidence of the prosecution's witnesses. The availability of this approach was articulated as follows by the Ontario Court of Appeal in R. v. J.J.R.D.:

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

The analysis in J.J.R.D. has been affirmed and adopted in several subsequent cases including R. v. Hull, R. v. Windibank, and R. v. J.A. These cases unanimously assert that the rejection of an accused's evidence on these grounds does not constitute a reversal of the burden of proof or an impermissible credibility contest between defence and prosecution witnesses. It is, rather, a reasoned, sound and intellectually honest method of reconciling the cosmetically faultless testimony of an accused with conflicting, credible evidence that meets the burden of proof beyond a reasonable doubt.

[24] Accordingly, in the particular circumstances of this case, despite the absence of any detectable flaw in the accused's testimony, I must consider whether I am persuaded beyond a reasonable doubt by the complainant's testimony in combination with the other evidence that I accept that the Crown has proven these allegations beyond a reasonable doubt.

Credibility of the Complainant

[25] The complainant was, in many respects, a very persuasive witness. She was candid and did her best to answer every question, even when defence counsel's inquiries verged on offensive or inappropriate. As well, many aspects of the complainant's testimony featured unique details that suggested authenticity, such as her recollection of always being told that she would get candy, to keep her lips tight and her eyes closed and seeing her assailant's stomach. Generally, I found her to be a truthful witness who dealt with the often demeaning suggestions put to her in cross-examination with dignity and admirable restraint. That said, defence counsel challenged the complainant's credibility on several discrete fronts.

[26] As pointed out by defence counsel and acknowledged by Crown counsel, the complainant had difficulty with details such as timing, the number of occurrences, the layout of the rooms and exactly who was positioned how and where. Her struggles with details also led to various inconsistencies between her police statement, her evidence in chief and her cross-examination. For example, the complainant's version changed throughout on the question of whether the computer room door was open or closed or had a chair against it. In her police statement, the complainant said that the accused had to put a chair against the door of the computer room to keep it closed, in contrast with her testimony in chief that the door was partially open. The complainant's response when confronted with the inconsistency in cross-examination was that there was more than one incident and she was simply describing what she remembered most vividly. In re-examination, the complainant indicated that she did indeed remember the chair being placed against the door.

[27] Further, when defence counsel pointed out to the complainant that she did not specifically disclose an occurrence in the rec room to the police, the complainant explained that she did not discuss every single incident with the police, nor did she remember every incident exactly how it happened. She also described the rec room and the computer room as all part of one space, but separated, thereby suggesting that there was not so much an inconsistency between her accounts as a lack of precision. She was referring to two sections of the same place. As the cross-examination continued, the complainant agreed that she also did not tell the police about any other distinguishing aspects of the rec room incident such as her step-grandmother coming downstairs and the accused having to cover up. She characterized her evidence as "whatever I have in my head today" and conceded that it differed from what she had told the police in 2009. Her explanation to the police was brief and basic. She actually thought that she had told the police about the rec room incident. Since then, she had had years to sit and think and testified in court according to what she remembered at the time.

[28] Defence counsel asked very detailed, occasionally offensive questions in cross-examination, such as whether the complainant "liked" what she was getting when she was forced to perform fellatio and whether the perpetrator's penis tasted like "candy." His general objective appeared to be to establish that, once she realized that she was getting something distasteful and not candy, it would have been logical for the complainant to complain or to refuse to spend time alone with her uncle again. Although I did not foreclose this line of cross-examination, I found this theme of questioning and reasoning to be unnecessary in the circumstances of this case. I accept the complainant's explanation to defence counsel that she loved her uncle and did not realize at that very young age exactly how what he was doing was wrong, although she felt a vague sense of shame.

[29] Defence counsel also challenged the complainant on her assertion that she could specifically remember the distinctive scent of sperm in spite of the fact that the accused did not ejaculate and she would have been too young to know what sperm was at the time. The complainant answered that she remembered the scent and realized when she grew older that it was the smell of ejaculate or pre-ejaculate. Defence counsel appeared to suggest that, because she had no recollection of the accused ejaculating, it was biologically impossible for the complainant to have smelled anything. The complainant was absolutely firm and unshakeable that what she smelled was what she labelled "pre-cum." She maintained that this was not assumption or conjecture on her part. It was memory and knowledge that she smelled pre-ejaculate. In submissions, defence counsel asserted that the complainant's insistence that she could remember the smell was "ridiculous." I find nothing ridiculous at all in this particular detail standing out in the complainant's memory. To the contrary, I agree with Crown counsel that the indelible mark of that olfactory impression on the complainant's recollection adds rather than detracts from her credibility. She was conveying the details that were significant to her as a child. She noticed a smell and over the years identified what that smell was. This was a perfectly logical, reasonable thing to do.

[30] The complainant was decidedly vague in her recollection of the number and timing of the alleged episodes in both her examination in chief and her cross-examination. She also indicated that she was generally not good with dates. She calculated that she was four or five years old when the incidents began and perhaps seven or eight when they ended. She was uncertain how frequently the incidents occurred or when the last one took place. More than once the complainant reiterated that she was a very young child and loved her uncle. She did not understand or think explicitly at the time that she was being abused.

[31] Defence counsel suggested that the fact that the complainant told nobody what was happening until her later confession to a girlfriend and, more significantly, never complained to anybody that she did not want to spend time with the accused, casts doubt on her credibility. The complainant, however, explained several times in various ways that she was too young to truly understand or articulate what was wrong with what the accused was doing. He was her uncle and part of her family and she loved him. This explanation is consistent with the complainant's welcoming of the accused as part of her family attending her grade 8 graduation ceremony and her subsequent hope, once she disclosed the allegations to her mother, that the issue could be dealt with through a family meeting and an apology without involving the police. I would not interpret the timing or manner of the complainant's disclosure of what happened as having any negative effect on her credibility. Her description of the conflicting thoughts and feelings that motivated her management of what had happened to her was entirely reasonable. There is no "right way" to respond to abuse. In the particular circumstances of this case, there was nothing illogical about the complainant's conduct over the years. She loved her uncle and also understood somewhere that what he had done to her was wrong. The fact that these two truths conflicted is neither surprising nor suspicious and certainly did not detract from her credibility.

[32] In summary, I would attribute most of the difficulties in the complainant's evidence to the passage of years and her very young age at the time of the occurrences. Also, although the complainant characterized the computer incident and the rec room incident as the most "vivid" of her memories, it was clear from the overall tenor of her evidence that her description of what occurred represented a composite of memories, things that she had always had in her mind. Particular aspects of individual occasions stood out in her recollection but it was impossible to discern whether she was describing specific, discrete events or putting together pieces of different memories in order to create a narrative. For this reason, I find that the confusion over details does not detract in any way from the complainant's truthfulness. This approach is consistent with the Supreme Court of Canada's recommended treatment of the evidence of child witnesses in R. v. B.(G.) and represents a fair and logical interpretation of the complainant's testimony.

[33] Nevertheless, I do have concerns about the reliability of the complainant's recollection. These are memories that the complainant has carried for many years. Over time, the clarity and certainty with which she is able to recollect all but the most core details of what she believes to have occurred have clearly become eroded and distorted. The complainant has described the events several times but only much later in life and always with the benefit of hindsight and more mature understanding. The effects of time, childhood, adolescence and reflection have obviously taken their toll on how the complainant recalls what happened at her father's house. Other than the evidence of her mother and the accused confirming the surrounding circumstances and the existence of opportunities for the accused to perpetrate these crimes, there is no evidence supporting the complainant's account. The only exception might be the mother's perception that the complainant was acting "weird" at her Grade 8 graduation but this observation was generic and does not constitute the type of demeanour evidence that might add to the reliability of the complainant's account. I believe that the complainant was truthful with the court. Given the passage of time, the inconsistencies and the vagueness of certain components of the complainant's recollection, however, I simply do not have sufficient confidence in the reliability of her evidence to persuade me beyond a reasonable doubt that the accused perpetrated these sexual assaults.

Conclusion

[34] After thorough and anxious consideration, I have concluded that I am not persuaded of the accused's guilt beyond a reasonable doubt. While there may be a likelihood that the complainant was the victim of sexual assault, the evidence in this case simply does not meet the criminal standard of proof. The complainant did her best to be truthful with the court. The evidence as a whole, however, leaves me with a reasonable doubt. The accused is therefore found not guilty.

Released: August 1, 2012

Signed: Justice M.H. Bloomenfeld

Footnotes

[1] These reasons were delivered orally on July 31, 2012. At that time the accused and both counsel were advised that the reasons might also be released in written form and that, if so, minor editorial changes might be made that would not affect the substance or basis of the reasoning.

[2] R. v. W.(R.), [1992] 2 S.C.R. 122

[3] R. v. B.(G.), [1990] 2 S.C.R. 30

[4] W.(R.), supra, at p. 123; B.(G.), supra, at pp. 54-55

[5] ibid

[6] R. v. Horton, 1999 BCCA 150, 133 C.C.C. (3d) 340 at p. 348

[7] R. v. Windibank, 2012 ONCA 272 at para. 6

[8] R. v. J.J.R.D., [2006] O.J. No. 4740 at para. 53

[9] R. v. Hull, 70 W.C.B. (2d) 274 (Ont.C.A.) at paras. 4-6

[10] supra

[11] R. v. J.A., 2010 ONCA 491 at paras. 19-23

[12] In contrast, reversing the burden of proof or approaching the prosecution evidence with insufficient rigour could lead to the error identified by the Ontario Court of Appeal in R. v. Stewart, 18 O.R. (3d) 509 (C.A.) at paras. 15, 26 and 28

[13] supra