WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Information No.: F13-0587

ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario)

BETWEEN:

HER MAJESTY THE QUEEN

• and -

W.B.

Counsel:

• Mr. G. Leach for the Crown
• Mr. W. Frith for W.B.

An order has been made under s. 486.4 directing that any information that could identify the complainant, A.D., shall not be published in any document or broadcast or transmitted in any way.

J.S. NADEL, J.:

Introduction

[1] In 2009, during her eighth-grade year, A.D. became friends with E.B., who was in grade seven at the same school. E.B. is the eldest daughter of W.B., the accused. A.D. alleges that she lived with the B.s during the summer of 2009 and that the accused "fingered" her twice that summer.

[2] W.B. denies that he ever touched A.D. inappropriately or at all. He denies A.D. was ever welcomed into his home by him. He testified that if she was ever there, it was without his invitation and contrary to his express direction to his family. His position is that he first met A.D. late one night during the school year when he came into E.B.'s room and found A.D. "having sex" (sic) with his daughter. He ejected A.D. from his home and forbade her to return.

[3] W.B. is charged that between June 30, 2009 and September 1, 2009 he sexually assaulted and sexually interfered with A.D.. The Crown proceeded by indictment.

The Evidence

A.D.'s Evidence

[4] A.D. was born on […], 1995. She became friends with E.B. in the fall of 2008. She turned 14 as her grade-eight school year ended. Her parents were separated and she was living with her mother but they were not getting along. So, she asked the accused for permission to live with his family for the summer since she had spent many weekends at his home during the school year when she and her mother were fighting.

[5] She called W.B. after a big fight with her mother and he made her feel welcome. W.B., his wife, C., and their three daughters lived together although W.B. and his wife did not share a bedroom. A.D. noted that W.B. slept on a couch and not in his wife's room but she did not attach any significance to that arrangement.

[6] E.B.'s mother, C., was the sterner of the two parents, while W.B. was more flexible and fun as a parent. The B.s had a pool, a play-set and a trampoline in their backyard. W.B. also had ATVs, which he used to take his girls and A.D. riding. The girls spent their summer days playing.

[7] Generally A.D. and E.B. slept in E.B.'s room, which was in the basement of the home. There was only one bed in that room so they shared it. On occasion they slept on couches in the recreation room in the basement and sometimes they slept out under the stars on the trampoline. A.D. could not recall if there was a television in the basement recreation room.

[8] A.D. was unable to precisely date when the first incident occurred. It happened on the trampoline in the backyard, around 11:00 p.m., though she was not certain of the time either. She and E.B. had decided that it would be fun to sleep outside so they laid down sleeping bags and had blankets and an orange tarp to protect them from dew or rain. The evening was fair with lots of stars and the two girls were falling asleep when A.D. heard the door open and W.B. came out and got onto the trampoline. E.B. seemed annoyed and said something to the effect of "what's he doing out here?" A.D. assumed that he had come out to look at the stars.

[9] W.B. lay down beside A.D. who was in between E.B. and her father. E.B. was on her right and A.D. was lying on her back. W.B. put his arm over top of A.D. and she thought that perhaps he wanted to cuddle her; although she had no idea why that would be so as he had never touched her before. While she could not recall what she was wearing to sleep that night, she usually wore two-piece pyjamas with underwear.

[10] A.D. was looking at the stars but getting nervous when W.B. pushed her blanket down with his left hand and started rubbing her vaginal area over her clothing. She said nothing and after a few minutes he put his hand under her clothes and put a finger into her vagina and started "fingering" her.

[11] She turned to look at E.B. who appeared to be watching what her father was doing. A.D. believed that E.B. knew what was happening. E.B. apparently saw a reflection from her father's wedding band because E.B. said, "What's that shining?" At that comment W.B. darted his hand away but he switched hands and continued to finger A.D. with his right hand. This whole episode lasted for 10 to 15 minutes in her estimation, when he "randomly" (sic) stopped and went inside. A.D. said nothing at the time. She testified that while she was 14, she knew nothing about "paedophilia" (sic) but felt that what he was doing was wrong although she said nothing to E.B. after W.B. stopped and left. She merely turned on her side and tried to go to sleep. E.B. came up behind her and started hugging her though they did not exchange any words.

[12] Subsequently, W.B. acted normally towards her, as if the event had never happened. While she cannot recall their conversations, W.B. continued to make her feel welcome in his home. He acted nicely towards her and paid attention to her.

[13] Later that summer W.B. touched her in a similar manner for a second time. On this occasion she and E.B. were sleeping on couches in the recreation room outside of E.B.'s bedroom. W.B. asked from the top of the stairs if they were asleep yet and A.D. told him they were just going to sleep. He came downstairs and sat on the couch that she was laying on while watching for E.B.. He lifted her blanket and quite abruptly began to finger her though for a much shorter time on this occasion, perhaps for five minutes. A.D. could not see E.B. as W.B.'s body blocked her view. Once again, he stopped without saying anything and left to go back upstairs. She said nothing and stayed where she was but saw that E.B. was looking at her so she went and slept on the couch with E.B..

[14] The girls did not speak of what had just occurred. For her part, A.D. said that as a 14-year-old, she did not know how to talk to her friend about W.B.'s behaviour since they never had serious conversations with each other. They merely talked about "Y" dances, what boy they might want to talk to or what dive they would try to do in the pool.

[15] A.D. said that while she had a vague memory of another incident on the trampoline, these two incidents were the only real memories she had of any objectionable behaviour towards her by the accused.

[16] A.D. never told anyone about what W.B. had done, particularly because she wasn't talking to her parents at that time. She was going into high school and as she recalled it, the B.s could not keep her given the cost of school uniforms so E.B.'s mother called A.D.'s father and A.D. started living with her dad.

[17] She was in grade nine in September of 2009 and E.B. was still in public school, so they grew apart and ceased being friends. While they continued to text each other for a time, they developed new circles of friends. When E.B. entered the same secondary school the following September, despite taking the same bus, they sat apart and never redeveloped their old relationship. They ceased communicating shortly after E.B. entered high school, in the fall of 2010.

A.D.'s Disclosure

[18] On January 9, 2013, out of the blue, E.B. initiated a text message exchange with A.D. in the following terms:

E.B. to A.D.: "I need a favour. You know when my dad touched you sexually in 2009; I need to know what happened."

A.D. to E.B.: "Why?"

E.B. to A.D.: "You don't need to get involved but we don't want L.2 around him anymore."

[19] A.D. received the first text from E.B. at about 6:00 p.m. on January 9, 2013 while she was at the "Y". She immediately recalled what E.B. was referring to and she assumed that something had happened between W.B. and his youngest daughter, L.2, so she went to E.B.'s mother's home upon leaving the gym.

[20] There, she disclosed to E.B.'s mother that W.B. had molested her some years before, although she provided no details of her complaint and did not mention the trampoline or the basement couch. She merely said that W.B. had touched her. A child welfare worker was present in the home at that home. She instructed A.D. to make her complaint to the police and A.D. did so on January 11, 2013. This was the first time she ever provided a detailed description of what had been done to her.

[21] Despite W.B.'s position that A.D. was banished from his home, neither that suggestion nor anything implying that position was put to her or to E.B. during their respective cross-examinations. The closest that defence counsel came to anything even remotely suggestive of that eventual defence evidence was this question:

"Were there not times where your presence was unexpected by W.B.?" A.D.'s answer was that she never felt that way. When she was asked whether there were times when "you snuck in through E.B.'s window?" her answer was that, "Ya, we used to sneak out at night." (emphasis added). She denied knowing that E.B.'s window had been nailed shut by her father, ("I never knew that.") When Mr. Frith asked when she stopped sneaking out A.D. replied that she and E.B. usually snuck out when A.D. was in grade eight, i.e. during the school year. Again the answer was not responsive but no further clarification was sought.

[22] Nonetheless, Mr. Frith brought out a number of areas where A.D.'s memory failed her or where she was inconsistent between statements. For example:

• she could not recall if there was a moon during the incident on the trampoline;
• she could not recall why they sometimes slept on the couches in the recreation room and not in E.B.'s room;
• she could not recall if there was a television in the recreation room;
• she could not recall with any certainty if there was a third couch in the recreation room;
• during her formal video-statement she said they had sleeping bags on the trampoline but she agreed that she may not have told the first officer that;
• she agreed that she may not have told the first officer about having a tarpaulin either.

[23] A.D. agreed that she suffered no physical ill effects or injury of any sort (no irritation, abrasion or pain) from being digitally penetrated by W.B.. Further, she agreed that he did not threaten her to prevent her from disclosing what she said he had done, nor did he attempt to have her touch him inappropriately.

E.B.'s Evidence

[24] E.B., the eldest of the W.B. daughters is currently 18. Her two younger sisters, L.1 and L.2 are 13 and 9 respectively. They all live with their mother now as their parents are separated and continuing to go through a protracted family law dispute, currently centering on child access.

[25] She confirmed the age, grade and friendship testimony of A.D.. As well, she confirmed that they often played together and that A.D. was a frequent visitor to the W.B. home. She testified that when A.D. stayed over, they slept in her bed. She also confirmed that A.D. moved in and lived with the B.s for a few weeks in the summer of 2009. She testified that it was her father's idea to invite A.D. to stay with them. While she thought that invitation odd, she was happy that it would be doing a favour for a friend.

[26] When asked about her father's behaviour towards A.D., E.B. said that her father would braid A.D.'s hair and drive her around and cuddle up next to her.

[27] She explained that they sometimes slept in the recreation room because the television in that room was larger than the one in her bedroom and they would use it when it wasn't being watched by her father, whose taste in entertainment did not match that of the girls.

[28] On occasion she and A.D. would sleep outdoors on the trampoline as a fun activity, if the weather was nice. On occasion her middle sister, Lily would join them. They would bring pillows and sleeping bags out and they had a dark green mesh cover available to protect them from mosquitoes. They did not have any sort of tarpaulin to protect them from moisture.

What E.B. Saw

[29] One night during the summer of 2009, she and A.D. were going to sleep outside on the trampoline. Her father came out to join them. That was not a matter of significance to her. She was comfortable with her father there as he often hung out with her and her friends. Her father was lying down beside A.D. and said something about it being a clear night and that they should look at the stars. Conversation on the trampoline was not continuous and E.B. was trying to fall asleep. At some point after her father lay down beside A.D., A.D. nudged E.B. and used her eyes to direct E.B. to look down. E.B. followed A.D.'s prompt and saw a reflection of her father's wedding ring down in the area of what she judged to be A.D.'s hips. While E.B. could not see clearly, she saw light reflecting from the ring on her father's hand, which was at A.D.'s pelvic area. This caused her to ask, "What's that shining?" Her father moved his hand away really quickly and responded, "Nothing, just go to bed." She does not recall A.D. making a noise or saying anything while this was happening.

[30] At that point, A.D. said that she had to go to the washroom and with another look prompted E.B. to join her. The girls left the trampoline and went into the house to a downstairs bathroom. E.B.'s testimony in-chief was that while she was fixing her hair in the mirror A.D. said, "Oh gosh, I'm purple." E.B. said, "What?" and A.D. replied, "I'm purple down there." At that E.B. said, "Ya, whatever, hurry up I want to go to bed, I'm tired." At a point in her cross-examination she said that that exchange was, "I'm purple down there and it hurt" and she replied," That's disgusting, ya whatever."

[31] E.B. said that they never really spoke of the matter further or again until January 9, 2013. She said that she did not want to believe that something untoward had occurred because the thought involved her father. The girls were in the washroom for about five minutes and when they returned to the trampoline W.B. was gone.

[32] E.B. did not know how long A.D. had been staying with them when the incident on the trampoline occurred. She recalled the time as being about 9:30 or 10:00 o'clock when her father came out. She said that it was pretty bright in the yard from a combination of the house lights and spotlights on the garage and that they slept with those lights on to deter coyotes and racoons. E.B. disagreed with defence counsel's suggestion that there were no spotlights on the garage in 2009 and she further disagreed with his suggestions about distances from the back door to the trampoline. Moreover, she could not remember if A.D. was inside a sleeping bag.

[33] In the days that followed E.B. saw two other incidents that remained with her. She recalled her father curling up behind A.D. when she lay on the larger couch and on many occasions he would either curl up beside her or sit beside her on the couch that she was on. The other incident she recalled was her father braiding A.D.'s hair with his legs wrapped around her as they sat on bar stools in the dining room of the home. E.B. sparred with Mr. Frith about whether there was a television in the recreation room back in 2009. E.B. insisted that there was. As to the cuddling incident that she recalled, she could not say how long it went on for but her father was not there in the morning when she awoke.

[34] E.B. recalled that A.D. left the W.B. home because A.D. got head lice and so C., E.B.'s mother, did not want A.D. to remain there. E.B. recalled A.D. going back to her mother's home prior to the September start of the school year. The two girls ceased to hang out together and ceased to be close friends. They had little contact with each other when both attended the same secondary school. Indeed, E.B. could not remember the last time she spoke to A.D. before she contacted her on January 9, 2013.

Why E.B. Contacted A.D. on January 9, 2013

[35] According to E.B., she contacted A.D. because she learned from her mother that her father was accusing her mother's boyfriend of having a pornographic website and of molesting little children. When she learned of her father's accusations she told her mother that it was her father who touched little children and she disclosed that her father had molested A.D. in the summer of 2009. She said that she had been holding in her knowledge of her father's behaviour and it seemed appropriate to disclose it to her mother at that time, in light of her father's accusations against her mother's boyfriend.

[36] So she contacted A.D. by text or perhaps by phone, she could not be sure, to ask her to come over and speak to her mother, C., about what happened between A.D. and her father in 2009. E.B. thought it was about time for that information to come out because her father was getting access to L.2 and E.B. was frightened that her father might abuse L.2.

[37] E.B. was uncertain if she was present when A.D. spoke to C. but believed that she did not hear any of the details of A.D.'s disclosure. A.D. did tell E.B. that she, A.D., would first tell her own mother what had happened and then she would call the police. Subsequently, A.D. contacted E.B. to confirm that she had called the police but A.D. did not provide her with any detailed information about her complaint.

Other Elements of E.B.'s Cross-Examination

[38] Mr. Frith reviewed the extent of E.B.'s participation in social media and the brand of her cell phone at various times. Counsel reviewed the W.B. family dynamic in 2009 and the following years. E.B.'s mother was experiencing anxiety and panic attacks, which strained relations in the household and eventually led to her parents' separation. Without detailing the circumstances, E.B. said that her father was removed from the house.

[39] Much of her cross-examination, indeed the major portion of it dealt with her relationship with her father and his new girlfriend and his new girlfriend's daughter, including extensive interrogation about her relationship with the members of this newly blended family grouping. The particulars of that extensive examination need not be repeated. The cross-examination was designed to and did demonstrate a substantial basis for a bias against her father, ostensibly based upon feelings of being abandoned and rejected by her father in favour of his new girlfriend and her daughter.

[40] Mr. Frith posed a sequence of questions to E.B. about the frequency with which A.D. was at the W.B. household, commencing with the question: "I understand that A.D. would come and stay on weekends?" He had E.B. explain how much time A.D. spent in the W.B. house; viz. sometimes on weekends though she would mainly sleep over in the summer. She agreed with counsel's suggestion that when E.B. slept over at the W.B. residence on weekends during the school year nothing untoward or odd occurred between A.D. and her father. A further suggestion put to E.B. by Mr. Frith was, "In 2009 she moved in after your grade 7 and her grade 8 year; is that correct?", to which the witness replied, "Yes." E.B. explained that her recollection was that A.D. lived with her family for between two and four weeks, during the summer of 2009. It is noteworthy, in my view, that no suggestion was put to either girl that A.D. had sexually assaulted E.B., had been interrupted in the course of that sexual assault and had been banished from the W.B. home.

[41] While E.B. had many best friends, and agreed that A.D. was one of them during 2009, she did not agree that as friends they would discuss people's attitudes or other similar sophisticated suggestions put to her. But, she acknowledged that she and A.D. would talk at recess, play soccer together and talk about boys; that they would tell each other private things they wouldn't tell others and seek advice from one another.

[42] As noted above, much of E.B.'s cross-examination was an investigation into her behaviour in the newly blended family home and into her relationship and actions towards W.B.'s new girlfriend and her child. None of that needs detailing for the purposes of this judgment. Suffice it to say, once again, that a basis for alleging bias or animus on the part of E.B. towards her father was well demonstrated. The suggestion was also put, but not accepted, that E.B.'s mother was opposed to the accused having access to his youngest daughter and that opposition is what is fueling this prosecution. At a point late in the cross-examination, E.B. stated that she had once thought of disclosing her father's behaviour to A.D. in order to cause a separation between her father and his new girlfriend. However, she desisted because she wasn't able to contact A.D. and was concerned that she would not be believed. The point that flows from this answer is that E.B. conceded she was prepared to use the events of 2009 as a tactical lever. She also acknowledged that for more than three years until January of 2013 she told no one. Other aspects of her cross-examination demonstrated that E.B. had the capacity to be pugnacious and willing to engage in vengeful actions, best shown by her acknowledgement of the tweet "Let the games begin" directed to her father's new family.

[43] Returning to something more germane counsel cross-examined E.B. on the communications with A.D. of January 9, 2013. E.B. said in essence that she could not remember what she communicated to A.D.. Counsel put A.D.'s recollection of the exchange, without attribution, to her and E.B. said that she could not remember how their exchange proceeded. For example, she did not believe that she used the word "favour". She did not remember saying, "I need to know what happened," though she does acknowledge that she told A.D. that A.D. did not need to get involved.

[44] E.B. insisted that all she wanted was for A.D. to make a disclosure; that she decided to contact A.D. to demonstrate to her mother, C., what had actually happened because she did not know if anything beyond what she had seen had occurred.

[45] She resisted the suggestion that she was merely assuming that something had happened between her father and A.D.. She was adamant that "she saw what she saw"; namely (i) his hand around her hip area on the trampoline; (ii) his cuddling of her on the couch; and, (iii) his braiding of her hair.

The Evidence of the Accused

[46] W.B. is 46. He was born in 1967 and lives in Fort Erie but presently not in his matrimonial home. He and his current girlfriend bought out his estranged wife's interest in that property, though as a result of his current bail terms he lives with a surety, elsewhere.

[47] He confirmed the family history evidence previously given and stressed his wife's extended depression in 2009 required multiple hospitalizations for multi-week periods, getting particularly bad around April of 2009. His wife's illness put great stress on their relationship and by his own admission "[their] relationship was not what [he] considered close." These hospitalizations occurred during the school year so that he did not have to find a babysitter for his daughters. As a result of her condition, "she became less tolerable with the kids and showed a lot of anger" and was not "being attentive to the children's needs." Moreover, they ceased sharing a bed regularly in about January of 2009 and did not sleep together often after that date.

[48] While he outlined his educational and employment history, he was neither qualified nor competent to give a diagnosis of his wife's condition. I do accept that he believed his wife was suffering from some form of mental illness though that belief is essentially irrelevant to these proceedings. Further, his diploma in social work from Niagara College and two further years of study at McMaster University in what he called "behavioural analysis" was not cited by him as playing any part in his response to A.D.'s actions, as he described them.

[49] In 2009 W.B. was employed as a "first responder" for the CAA. This was light-duty triage work, which did not involve any towing, though he might jump or change a battery. He worked 12-hour shifts for five days and then had two days off. The day shifts were either 6:00 a.m. to 6:00 p.m. or 8:00 a.m. to 8:00 p.m. and the succeeding night shift was noon to midnight. There was no light duty response after midnight.

Meeting A.D. – Mr. W.B.'s Version

[50] W.B. described his home as a side-split, with E.B.'s bedroom in the basement but with her bedroom window being above ground level. He testified that the first time he met A.D. was when he "caught her in [his] daughter's bedroom sneaking through the window" at about 2:00 a.m. He had heard noises in the house and checked on E.B. and saw A.D. lying on top of E.B. and they "appeared to be having sex." Being upset by this discovery W.B. told A.D. to get out of the house and "don't ever come back!"

[51] Despite this order and despite telling his wife and children of this rule, W.B. testified that A.D. came back "on almost a nightly basis." So, he put a nail in E.B.'s window to prevent it from opening higher than six inches to keep A.D. out and to keep "other kids out, period".

[52] The next time W.B. saw A.D. at his home was in July of 2009 when he was sleeping on the trampoline with his youngest daughter, L.2, who had fallen asleep on his arm. It was common for him to lay there with her and then bring her back into the house to lie down on a couch while she was sleeping.

[53] On that particular evening W.B. and L.2 were sleeping face to face when he heard giggling and looked up to find E.B. and A.D. getting onto the trampoline. He said "You guys disgust me" or perhaps "You guys fucking disgust me" and got off with L.2. As he did so E.B. asked him where he was going and he replied, "I'm going into the house to get the fuck away from you guys" and he went into the house with L.2 and locked E.B. and A.D. out.

[54] W.B. said that he did not see A.D. at his home on any other occasion during 2009, other than one morning when he found A.D. and another girl sleeping in his van. W.B.'s final encounter with A.D. occurred in August of 2009. A.D.'s mother had telephoned E.B. and said something that upset her. Learning of that W.B. went over to A.D.'s mother's house to tell her to stay away from his daughter. W.B.'s version of that event differed markedly from suggestions, put to him by the Crown, which W.B. did not accept. On that occasion W.B. stayed in his van but witnessed A.D.'s mother in an intoxicated condition chasing A.D. with a shovel. He yelled at her "to keep your fucking kid away from my kid and stop calling my house." That was the last time, other than at this trial, that he had seen A.D..

[55] While E.B. did tell him the first name of the girl that he ejected from her room and while E.B. did tell him something of that girl's family situation, he never knew her surname and had nothing whatsoever to do with her other than what he testified to. In short, Mr. W.B. denied ever touching A.D. inappropriately or at all. Neither the trampoline incident nor the couch incident ever occurred as testified to by A.D. and likewise, none of E.B.'s testimony which placed him together with A.D. occurred. He said E.B. was lying when she said he cuddled with A.D.. He never braided her hair. Moreover, due to a prior hip and knee injury he is unable to manipulate his legs in the fashion described by E.B.. A.D. was never at his home regularly on weekends and she never lived there. Other than the incidents that he described, he never saw A.D. at his home, although his younger daughters did tell him she was there at times to swim when he was not at home.

[56] W.B. contradicted other elements of E.B.'s evidence. He denied that there was ever a television in the recreation room until 2011 when his new girlfriend moved in and brought a big-screen television that was mounted, not over the fireplace, but on a swinging hinge in the corner of the room.

[57] Like E.B.'s cross-examination, much of W.B.'s direct examination was taken up with a review of his matrimonial difficulties and the course of his separation. He spoke of family court proceedings, the development of his new relationship and the history of and difficulties encountered in his attempt to blend families. In my view the particulars of those proceedings need not be detailed other than noting that W.B. felt that E.B. came to hate him and his new girlfriend.

[58] There is one element of that family law saga that is significant. For reasons that were not identified, at some point prior to January of 2013 W.B. said that he had been released on a recognizance of bail which precluded him from exercising access to his youngest daughter L.2. That recognizance was amended, (W.B. alleges it was corrected as L.2's name was included in error ab initio,) and W.B. was able to exercise access, albeit supervised, to L.2 on January 9, 2013. It was that event which prompted his estranged daughter, E.B., to contact A.D. to instigate her complaints, which initiated this prosecution. In my view that was undoubtedly true but, as I shall explain, that oblique motive does not colour or detract from A.D.'s credibility.

Mr. W.B.'s Cross-Examination

[59] Without attempting to recapitulate all of Mr. Leach's cross-examination, the following matters are relevant. W.B. agreed that his wife's hospitalizations did not occur during July and August of 2009, when she was living in the family home.

[60] W.B. insisted that the first time he ever met A.D. was at the end of July or the beginning of August of 2009 when "[he] caught her – [he] opened the door and A.D. was laying on top of E.B. and they were having sex." He did not recognize her and did not know her name as he had never met her before. He "yelled at the kid to get the hell out of [his] house" and she left through E.B.'s window. He asked E.B. "who the hell is that kid?" and she told him it was a friend named A.. Their discussion was very brief and he told her they would talk about it in the morning.

[61] By "having sex" he meant that he saw A.D. kissing E.B. on the mouth and thrusting her pelvis into E.B.. The intruder was clothed. He did not know if E.B. was clothed. E.B. never gave him "A.'s" surname. Despite being her friend, E.B. was as horrified about the incident as he was. W.B. said, "It was an awful scene."

[62] W.B. said that he probably nailed E.B.'s window shut within two or three days of having found A.D. in his daughter's bedroom and that he did so after speaking with his wife and also as a result of other kids throwing eggs at the window.

[63] While he told E.B. that they would talk about this event in the morning they never did. He told his wife the next morning but did not wake her that night as she was taking medication and was very fragile during that year. He had his wife speak to E.B. but never called the police about this break and enter and sexual assault of his daughter that had just occurred. Neither did he attempt to contact the mother of the girl he had found sexually assaulting his daughter. He said that he did not know who the girl's mother was. I infer he made no attempt to ascertain that information.

[64] W.B. agreed that what he testified to witnessing was an intrusion into his home that resulted in a sexual assault. He said that he did not report it to the police because of his wife's condition; i.e., he did not report it as an aid to assisting in his wife's recovery. Moreover, he says that his wife told him that she would talk to E.B. about what had occurred.

[65] He testified that the next time he saw A.D. was in about the first week of August when she and E.B. crept onto the trampoline and he said, "You guys fucking disgust me." He testified that he told them they disgusted him because of the lesbian interaction he had seen them engaged in on the prior occasion. He said that he was disgusted because he had two other small girls in that house.

[66] He told his wife and E.B. that he "did not want to see that kid at [his] home ever, especially if [he] was home and that he did not want to see that kid." The banishment was meant to be total and complete and not just when he wasn't there. While he never saw A.D. at his home, other than what he testified to in direct examination, his children would tell him that she was at the house and he would get into arguments with his wife about her attendances but he did not discuss the issue with E.B.. He felt it was an adult situation and did not think it appropriate to bring E.B. into the discussion.

[67] He spoke to his wife on the morning after he left the two girls outside on the trampoline because she went to sleep very early in the evening due to medication that she was taking. He did not know where E.B. and A.D. spent that night after he locked them out of the house. He locked them out of the house because "[he] did not want that child in [his] house." He said that he thought they may have stayed outside on the trampoline or they may have snuck back into the house through E.B.'s window. When Mr. Leach reminded W.B. that he had already testified to nailing that window shut so that it could not be raised more than six inches, W.B. responded, "I said they may have."

[68] When challenged about merely going inside without ordering A.D. to leave or without calling the police when he saw her on the trampoline in the company of E.B., given what he had witnessed in his daughter's bedroom and despite his order that A.D. not attend at his home, he responded that he thought his "comment was pretty stern." He further explained that he had L.2 in his arms and he did not feel it was appropriate to wake her up. Moreover, the first thing he asked his wife in the morning was "why that kid was at [his] house?"

[69] When Mr Leach pressed him as to why he did not do more about A.D.'s unwelcome presence at his home he said that "[he] did not believe in being verbally abusive." That he would rather "settle it down and talk about it with a clear head the next morning" especially given that his wife was having a nervous breakdown so he did not want to add to that and he had his youngest child in his arms.

[70] He did not consider saying, "You guys fucking disgust me" as being verbally abusive considering that both girls knew that A.D. should not have been there.

[71] Although neither a time nor an incident was identified, W.B. testified that while he never called the police to deal with A.D.'s behaviour he did warn her that he would and that there were only three occasions in 2009 where he had any interaction with A.D. "to the best of [his] recollection."

[72] W.B. was adamant that A.D. never lived at his house with his knowledge. He did agree that on occasion E.B. might sleep on a couch in the recreation room if her bedding was being washed. He also agreed that there were couches in the recreation room, a large one and a small one. He, too, could not remember if there may have been a third couch in that room. He also acknowledged that if E.B. had her mother's permission then she could sleep outside but there was no need to sleep on the trampoline since he had tents in the backyard. While there were always blankets on the trampoline to prevent the children from getting knee burns, he never had either a green mesh or an orange tarpaulin.

[73] He did habitually wear a gold wedding band on the ring finger of his left hand but, while it was by definition metallic, it was not shiny.

Submissions

The Defence's Submissions

[74] At my request I instructed counsel not to review W.(D.), Lifchus or Starr. In the result, Mr. Frith detailed various submissions to support his position that at a minimum the Crown's case failed on the third prong of W.(D.). In brief compass, his submissions in that vein were as follows.

[75] The complainant's memory was deficient in many respects so that her testimony cannot be relied upon to produce proof beyond a reasonable doubt. For example, despite purportedly living in the W.B. home for the summer, she could not remember if there was a television in the recreation room even though she had to walk through that room each night to reach E.B.'s bedroom where she professed to sleep.

[76] The family law and custody dispute in the W.B. family has caused E.B. to be biased against her father. Her testimony is the product of an animus designed to get him convicted of an offence that will assist in preventing him from having access to his youngest daughter. It was her desire and her mother's desire to effect that result which caused them to contact A.D. and to prompt A.D. to make a complaint against W.B.. Given that animus E.B.'s evidence is completely suspect and ought to be rejected. It would be unsafe to ground any conviction on E.B.'s testimony given her feelings of animosity toward her father. All of her testimony is a ploy to advance a family law agenda.

[77] The relationship between W.B.'s exercise of long delayed access to his youngest daughter on January 9, 2013 and E.B.'s contacting of A.D. on that same date, (seeking to malign her father,) demonstrates the strength and correctness of the prior submission.

[78] It is this ulterior motive to promote self-serving purposes and not to protect L.2 from any danger that has caused this prosecution to be initiated. W.B.'s estranged wife and eldest daughter have sought to punish W.B. emotionally.

[79] Leaving oblique motives aside, and even taking E.B.'s evidence at face value, she does not purport to see her father sexually assault or sexually interfere with A.D.. At most she testified that she saw her father's hand near A.D.'s hip area on one brief occasion and on other occasions she saw her father lying beside or sitting beside A.D. with no impropriety occurring. What she testified to does not amount to a sexual assault.

[80] Further, there are major contradictions between the evidence of the two girls on the alleged trampoline incident. A.D. says there was starlight and E.B. says there were spotlights. Much more significantly and ultimately irreconcilably, A.D. says they did not speak of the incident and went to sleep and E.B. says they left the trampoline and had a specific though short conversation about what had just occurred. Worse, A.D. says she suffered no physical effect from being digitally penetrated yet E.B. says that A.D. complained that she was "all purple down there." These contradictions preclude the court from relying on A.D.'s testimony to the exclusion of any reasonable doubt.

[81] Mr. Frith urged that it would be more than odd that, if the event on the trampoline happened as A.D. said, the "imprint of memory" during such a traumatic incident would fail to allow her to provide a complete narrative of the event. Moreover, A.D. testified that during this assault that lasted ten minutes or more she did not suffer any pain, irritation or scratches. That is to say, the lack of physical corroboration is "passing strange" (sic); i.e., exceedingly bizarre.

[82] Mr. Frith also urged that I should find A.D.'s testimony that by age 14 she had not received any school instruction in the nature of "good touch, bad touch – tell" unbelievable. As I noted in a brief colloquy with counsel, I am unable to take judicial notice of the contents of a Roman Catholic public school curriculum. Mr. Frith also submitted that A.D.'s explanation for not making a disclosure because she was not living with either parent at that time was a weak excuse for not telling anyone. Once again, while timing of a complaint is something that a trier of fact can consider, the law as explained in R. v. D.D. and R. v. Batte reduces that consideration significantly.

[83] I accept Mr. Frith's submission that E.B.'s motivation to testify was strongly influenced by her particular family situation and estrangement from her father but I must observe that, the major contradiction in the trampoline incident aside, she did not appear to be exaggerating what she saw of the interaction between her father and the complainant. As E.B. said on at least two occasions in her testimony "I saw what I saw", (her father's hand down near A.D.'s pelvis while on the trampoline and several occasions where he cuddled her or sat close to her and on one occasion braided her hair.)

[84] In that regard Mr. Frith contends that the contradictions between A.D. and E.B. as to whether the accused was sitting on the couch as A.D. said or lying behind her as E.B. recalled are too different to credit either story.

[85] In Mr. Frith's submission the contradiction between the accused and his daughter about whether there was a television in the recreation room in 2009 is a matter of substance. Moreover, he urged that on that occasion and others the two girls resorted to what he described as "the 'witness' refuge,": "I don't remember." As a result, he urged the court ought to have a reasonable doubt about the veracity of their evidence. Without providing details, (other than what has been referred to,) Mr. Frith submitted that both witnesses could not remember things they should have remembered and both witnesses contradicted each other on the fine details of things they should have been able to recall.

[86] In addition, Mr. Frith suggested that the more emotionally congruent demeanour exhibited by A.D. during her direct testimony contrasted with what he described as a "dead-pan and impassive" demeanour in cross-examination which, he urged, detracts from her credibility.

[87] Finally, Mr. Frith submitted that the time between January 9, 2013 when A.D. first disclosed to E.B.'s mother and February 7, 2013 when A.D. made her digitally recorded video statement was plenty of time for there to have been "concoction and collaboration", i.e., collusion between A.D. and E.B..

[88] In the result, Mr Frith urged that it would be dangerous to convict on this evidence and that W.B. should be found not guilty.

The Crown's Submissions

[89] Mr. Leach observed that in most sexual assault cases there are two competing theories. Given that, the Crown submits that a court ought to look for confirmatory evidence or conflicting evidence to assist the court in its application of W.(D.). The court's task is made more problematic and complicated in this trial because the Crown submits that the defence breached the rule in Browne v. Dunn by failing to put the defence position that A.D. never spent weekends during the 2009 school year at the W.B. home, never lived at that home in the summer of 2009 and was banished from the W.B. home by the accused for breaking into E.B.'s bedroom and sexually assaulting her.

[90] By failing to put that position to the two Crown witnesses, the court was denied their evidence. Because they were never given an opportunity to respond the court did not hear their perspective on those allegations. In these circumstances the Crown submits that the court ought to diminish the weight it accords the accused's evidence.

[91] Next, while implicitly accepting the force of the defence submissions that E.B.'s evidence must be viewed through the lens of the W.B. family-law dispute, that point must be balanced against the fact that the two former girlfriends had had no relationship for a period of more than three years before January of 2013.

[92] Significantly, despite not having discussed the matter and not having socialized since the summer of 2009, E.B.'s text was immediately understood and acted upon by A.D.. The Crown submits those facts demonstrate that W.B. sexually assaulted A.D. in the summer of 2009 and that E.B. was aware of that sexual assault because she was a witness to it.

[93] While the Crown accepts that the W.B. family-law dispute was a motivating factor in E.B.'s behaviour, the same cannot be said for A.D.. She denied being motivated by or being a part of that family's trauma. While she immediately inferred that E.B.'s text message meant that the accused may have acted improperly toward his youngest daughter L.2, she carried through with her police complaint for her own sake. She played no part in nor had any desire to promote any vendetta against the accused.

[94] The Crown urged that the defence submission regarding a lack of "recent complaint" was legally insignificant. Moreover, the defence submission that the witnesses ought not admit that they cannot remember is equally of little moment, since that is what a witness should say if they cannot recall. Likewise, the defence comment on demeanour should not be given significant weight, as demeanour is a notoriously dangerous basis upon which to found a decision.

[95] As to the defence complaint of collusion, the Crown submits that there is no evidence of it and the fact that there are inconsistencies in the evidence of the two Crown witnesses demonstrates the absence of collusion.

[96] Mr. Leach submits that the defence suggestion that E.B.'s evidence does not corroborate either of A.D.'s complaints is incorrect. E.B.'s evidence corroborates A.D.'s evidence in several material respects: (i) the three were on the trampoline together at the same time; (ii) the two girls intended to sleep outside on the trampoline; and, (iii) the accused's hand was at the hip or pelvic area of A.D.. As to the defence submission that the inconsistency between the two girls, (about what happened after the sexual assault ended,) demonstrates that this event did not happen since if it did the witnesses' testimony would not diverge, the Crown submits that two honest witnesses can recall or forget events differently. Mr. Leach submits this major discrepancy is not fatal to the Crown's case and that despite this inconsistency the court should be satisfied of the guilt of W.B., to the exclusion of any reasonable doubt. In sum, so far as the third prong of W.(D.) is concerned, the Crown submitted that the cumulative effect of the two witnesses proves W.B.'s guilt beyond a reasonable doubt.

[97] Moving to the second prong of W.(D.) Mr. Leach submitted that the accused's evidence was troubling and puzzling and not worthy of belief and ought to be rejected. In the Crown's submission that conclusion flows from his failure to report a sexual assault upon his daughter. Not only did he not report this alleged sexual assault, he did not even approach the parents of the assailant and only "talked" to his wife about the incident. That incongruous behaviour was exacerbated by his purported behaviour on the trampoline. He did not intervene and eject the complainant. He merely insulted both her and his daughter.

[98] In the Crown's submission these are pieces of evidence that cannot be reconciled with the prior history that he alleged. This evidence is incredible and ought to be rejected.

Reasons for Judgment

[99] In approaching a case where credibility assessments will play a significant role it is useful to recall the principles of fact-finding that Mr. Justice Hill conveniently collated in R. v. Johnson, 2011 ONSC 195, [2011] O.J. No. 317 (S.C.J.) at paragraphs [121] to [129]:

Fact Finding -- General Principles

121 The court may believe all, none or some of a witness' evidence … Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted …

122 However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged …

123 A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. … However, …

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. … An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof …

… you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

124 It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown … The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. …

125 The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses ... Where there are significant inconsistencies or contradictions within a principal Crown witness' testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established …

126 Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom -- this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking … However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness … Demeanour evidence alone cannot suffice to found a finding of guilt …

127 In considering whether the circumstances of a particular witness tend toward making the credibility and/or reliability of that witness' testimony sufficiently suspect to attract a caution or warning as to unconfirmed reliance on his or her evidence, a trial court will inevitably look to whether the witness' evidence incriminates the accused, the depth of the taint or concern as to the prosecution witness' trustworthiness, and, the relative importance of the witness to the Crown's case.

128 To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect -- the evidence should, however, be capable of restoring the trier's faith in the complainant's account … There is no absolute rule that tainted or suspect witnesses cannot corroborate each other's evidence provided the prosecution has disproved collusion …

129 Where evidence of the accused's good character is introduced into evidence at trial, it is relevant to both the accused's credibility as a witness and to the improbability of his or her involvement in the commission of the alleged offence(s) …

The Rule in Browne v. Dunn

[100] As noted earlier, the position taken by W.B., that A.D. was not a welcome visitor to his home and, in fact, never lived in his home, was never put to either Crown witness. As a result, the rule in Browne v. Dunn was not complied with by the defence. That "rule" was recently discussed by Mr. Justice Durno in R. v. Collins, [2014] ONSC 1066. The complete discussion is found at paragraphs [123] to [129] and contains an extensive excerpt from R. v. McNeill (2000), 48 O.R. (3d) 212 (C.A.) at paragraphs [44] to [49], where Moldaver J.A. wrote:

44 The rule in Browne v. Dunn was succinctly stated by Labrosse J.A. in R. v. Henderson, [1999] O.J. No. 1216, supra, at p. 141:

This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

45 In R. v. Verney (1997), 87 C.C.C. (3d) 363 at 376 (Ont. C.A.), Finlayson J.A. outlined the purpose and ambit of the rule:

Browne v. Dunn is a rule of fairness that prevents the "ambush" of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice. ... [further reference omitted]

46 While these decisions explain the rule and its underlying purpose, they do not address the options available to a party who feels aggrieved by the failure of his or her opponent to adhere to it. To that end, I offer these suggestions.

47 In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it. If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness's evidence, regardless of whether the evidence is uncontradicted.

48 The mechanics of when the witness should be recalled and by whom should be left to the discretion of the trial judge.

49 In those cases where it is impossible or highly impracticable to have the witness recalled or where the trial judge otherwise determines that recall is inappropriate, it should be left to the trial judge to decide whether a special instruction should be given to the jury. If one is warranted, the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.

[101] At paragraph [126] Justice Durno noted that the "rule" is not a fixed one. He went on to note, pursuant to R. v. Sadikov, [2014] ONCA 72, at paragraph [49], that the extent of its application resides within the discretion of the trial judge since whether and to what extent the rule will be applied depends on the circumstances of each case.

49 What is termed the "rule in Browne v. Dunn" is a principle designed to provide fairness to witnesses and parties. It requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach. However, it is not a fixed rule: the extent of its application resides within the discretion of the trial judge. Whether, or to what extent, the rule will be applied depends on the circumstances of each case: R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 211, [2006] 2 S.C.R. viii.

[102] To complete the regression to earlier authority, paragraph [42] of Giroux provides:

42 The so-called rule in Browne v. Dunn is designed to provide fairness to witnesses and parties. It requires counsel to give notice to those witnesses whom the cross-examiner intends later to impeach. But it is not a fixed rule, and the extent of its application is within the discretion of the trial judge, depending upon the circumstances of the case. See R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.) at 493; R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.) at paras. 21-22 (and authorities cited therein). In Browne v. Dunn itself, Lord Herschell, L.C., explained the rationale for the rule (at 70-71):

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. [Emphasis in original.]

[103] In my view this rule of fairness was clearly breached by the defence. As noted earlier, no contrary suggestion or challenge was put to the two Crown witnesses about how often and to what extent A.D. attended the W.B. residence or to the welcome extended to her by the accused. That ought to have been done, in fairness. It seems to me that had such a challenge or suggestion been made then the Crown would have had the opportunity to have these witnesses respond to that defence position or would have called other evidence during its case-in-chief to meet and counter that suggestion. Such evidence was apparently available as noted at footnote 3, above. In my view an inference adverse to the credibility of the accused is available to be drawn but need not be since his evidence is fractured by an internal inconsistency that makes it incredible in any event.

Demeanour Evidence

[104] This subject is canvassed by Hill J. at paragraph [126] of Johnson that appears above at paragraph [99] but for ease of reference I repeat it below:

126 Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom -- this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking … However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness … Demeanour evidence alone cannot suffice to found a finding of guilt …

[105] The topic is also treated by Durno J. in Collins at paragraphs [67] to [72]. At paragraph [72] he noted the Court of Appeal's declaration that "demeanour alone is a notoriously unreliable predictor of the accuracy of a witness' evidence." Earlier, at paragraph [69] he observed that "[t]he Court of Appeal has repeatedly held that a witness' demeanour while testifying is a factor a trial judge is entitled to take into consideration." His Honour went on to quote extensively from authorities as follows:

In R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.) at pp. 59-60, Finlayson J.A. wrote:

The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin, [1988] S.C.J. No. 80; (1988), 44 C.C.C. (3d) 193; (S.C.C.). This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability. As Rowles J.A. emphasized in R. v. R.W.B., [1993] B.C.J. No. 758, 40 W.A.C. 1 (B.C.C.A.), these issues are not to be determined in isolation. She said at p. 9:

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented. [Emphasis in original.]

This court has twice adopted the above passage from R. v. R.W.B. In R. v. S.(W.) (1994), 90 C.C.C. (3d) 242, I wrote on behalf of the court. In relation to Rowles J.A.'s admonition to determine both credibility and reliability on the basis of "all of the other evidence presented", I stated at p. 250:

The issue, however, is not the sincerity of the witness but the reliability of the witness' testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record ...

In particular, I warned against a process of reasoning that accepts the complainant's credibility on the basis of demeanour, at the outset, and then proceeds to discredit the contrary evidence. I stated, at pp. 251-2:

Here, the trial judge accepted the evidence of the complainant, despite its obvious exaggeration, solely on the basis of her demeanour ... Having decided that he believed the complainant, the trial judge sought to discredit the credibility of those who contradicted her ... He was favourably impressed with the complainant and the manner in which she testified and, consequently, he believed her. He then subtly shifted the onus to the appellant, as accused, to give some explanation as to why the complainant would lie

... In this manner, the trial judge failed to properly apply the presumption of innocence, and to adequately found the conviction on the whole of the evidence. [Emphasis in original.]

Galligan J.A. (Arbour J.A. concurring) applied these principles in R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), as follows, at pp. 355-6:

This was a case which depended entirely upon the credibility of the complainant. The trial judge accepted her evidence based upon her demeanour in the witness-box ... when trial judges are assessing credibility it is worthwhile to keep in mind what was said by O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at pp. 356-7, 4 W.W.R. 171 (B.C.C.A.):

If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness ...

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions ...

... The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [Emphasis of Galligan J.A. in original.]

Collusion

[106] Mr. Justice Hill treats the subject of collusion, albeit in the context of similar fact evidence, succinctly in Johnson at paragraphs [141] to [145]. Given the defence contention that the two Crown witnesses had time between January 9, 2013, when the complainant first made a disclosure of impropriety and February 7, 2013, when she gave her recorded statement to collude together, Justice Hill's discussion is apposite.

141 With regard to similar fact evidence, the "existence of collusion rebuts the premise on which admissibility depends" (Handy, at para. 110) as the probity of such evidence arises from the improbability of two or more witnesses independently or coincidentally giving the same evidence: U.C., at para. 40. Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown must satisfy the trier of law as a condition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion: Handy, at para. 112. [Emphasis added.]

142 Dictionary definitions of collusion raise notions of secret agreement, plotting or conniving, or conspiring together for a fraudulent or underhanded purpose.

143 To the extent that the jurisprudence dealing with collusion speaks of collusion "or some other form of tainting" (U.C., at para. 40; B.(T.), at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other "or even discussed the appellant's misconduct with each other")), the court, in deliberating upon the admissibility issue, should be alive to instances of witness contamination of a sufficiently serious nature as to threaten the true existence of coincidence.

144 The evidence may disclose limited contact between complainants as in R. v. L.G., 2009 ONCA 895 at para. 5. Opportunity for collusion may well be the context "in many cases alleging sexual abuse with multiple complainants" (Handy, at para. 111) and communication among sister complainants is "almost inevitable": R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) at para. 43. But "[t]he issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually be best left to the jury": Handy, at para. 111. [Emphasis added.]

145 There may exist the opportunity for collusion, or the potential for collusion, without the evidentiary record disclosing an air of reality to collusion having in fact transpired. Where the trial judge is satisfied that the reliability of the evidence is not jeopardized by collusion or similar tainting, the trier(s) of fact will then decide the ultimate worth of the evidence: Handy, at para. 112; U.C., at para. 19. At trial, of course, it is "not incumbent on the defence to prove collusion": Handy, at para. 112.

Discussion

[107] Applying R. v. W.(D.), [1991] 1 S.C.R. 742, I have charged myself that if I believe W.B.'s evidence I must find him not guilty and even if I do not believe his testimony but cannot reject it so that I am left in a state of reasonable doubt by it, then equally, an acquittal follows. I do not believe W.B.'s denials and I am not left in a state of reasonable doubt as a result of his testimony because I reject it.

[108] I do so for a number of reasons. To begin with, I find it improbable that Mr. W.B. would not be familiar with his eldest daughter's closest friends. E.B. was in grade seven and A.D. in grade eight. They had been close friends for more than half a school year and they both testified that A.D. had spent time including overnights on several occasions at the W.B. house during that school year. I accept that evidence and disbelieve W.B.'s testimony that the first time he ever saw A.D. was the night he says that she broke into his daughter's room and committed a sexual assault upon E.B. that he interrupted. I reject his evidence that he did not know A.D..

[109] I reject his evidence because according to it, A.D. would have no knowledge of his strained relationship with, his spouse, yet she knew, as he corroborated, that he and his wife did not sleep together regularly. W.B. testified that he and his wife ceased sharing a bed regularly in about January of 2009 and did not sleep together regularly after that date. That is information that A.D. gleaned either during her school year sleepovers or during the weeks that she lived with the B.s as she and E.B. said.

[110] Further, A.D. knew of the personalities of E.B.'s parents; that C. was the sterner of the two parents while W.B. was more flexible and fun as a parent. Once again this is corroborated by the accused's testimony, ("she became less tolerable with the kids and showed a lot of anger") and it is further confirmation that A.D. had the opportunity to observe the parents of her girlfriend at firsthand during the times she spent and lived in the W.B. home.

[111] Additionally, A.D. testified that W.B. made her feel welcome in his home and took her ATVing along with his other daughters. Here is another piece of detail that lends credit to her testimony and which causes me, when considering the evidence as a whole, to reject his evidence.

[112] But, more than all of that, it is my view that W.B.'s evidence is incredible and unbelievable. He says that he found his eldest daughter being victimized by a stranger who had broken into her bedroom and was sexually assaulting her. He says that E.B. was as horrified about the incident as he was and that "[i]t was an awful scene." He does not try to apprehend and detain the intruder. He yells at her to get out of his house. He does not call the police. He does not console his daughter. He does not seek to learn the identity of the intruder. He tells his daughter they will talk about the incident in the morning but he never speaks to her about the incident. What he says he does is banish the intruder from his home and while he instructs his family of that banishment they then ignore it, according to his testimony. That evidence does not accord with human experience or common sense.

[113] He then says that he meets the complainant again with his daughter, and both have ignored his banishment order and sought to join him on the trampoline in his back-yard. Despite his order, despite testifying that his daughter was victimized by this person, he again acts in a manner that I find is inconsistent with his professed testimony. He insults the two girls, telling them that they disgust him and he locks them out of the house. He leaves his daughter in the company of her assailant and says that he does not know what happened to his daughter or where she slept that night. He insults the girls because they have engaged in lesbian behaviour yet he testified that his daughter was being sexually assaulted. His behaviour on the alleged second meeting is inconsistent with his version of his first meeting with A.D. and inconsistent with the alleged reaction of his daughter to being sexually assaulted by A.D.. He appears to be saying that the first incident was not a sexual assault but rather the interruption by him of a de facto consensual act between the girls. His evidence is riddled and fractured with inconsistency and his professed behaviour is unreasonable and unbelievable. I reject his testimony that A.D. was a stranger to him, that she was unwelcome in his home and that she never lived with the W.B. family during the summer of 2009.

[114] In light of my rejection of the accused's evidence it is not necessary for me to determine whether I ought to draw an inference adverse to his credibility as a result of the defence breach of the rule in Browne v. Dunn. Nonetheless, despite rejecting his evidence I still must go on to consider whether the evidence of the two girls satisfies me to the exclusion of any reasonable doubt that W.B. is guilty of the offences charged. In undertaking that consideration I shall deal with the main defence submissions in support of an acquittal more or less in the order that they were made and précised above.

Memory

[115] The defence submits that the complainant's failure to recall whether there was a television in the recreation room is a serious blow to her credibility. I do not agree. The defence suggests that if the complainant truly spent time in the W.B. home and slept in E.B.'s bedroom in the basement then she should be able to recall whether or not there was a television in the recreation room as she would have had to pass through that room to get to E.B.'s bedroom. Yet, W.B., who lived in that home, who owned the furnishings in that home and who spent much more time there than the complainant was unsure about whether or not there was a third couch in that room. The complainant's failure to recall whether or not there was a television in that room is no more significant than was the accused's inability to be sure about whether there was a third couch in that room. That is to say, not at all. Likewise, whether the tarpaulin, which seems to me to amount to a "ground sheet," was orange as A.D. remembers or whether there was a green mosquito net, as E.B. recalls, is equally, in my view, a matter of little moment. Likewise, the accused's denial that he ever had either of those items does not affect the result in this case. Everyone agrees there was a trampoline in the backyard and E.B., her father and the complainant all agree that on occasion children slept out in the backyard.

[116] The other defence complaints about whether there was a moon or merely starlight or whether or not there were spotlights on the garage are similarly of no real significance. But, as I shall explain below, there is one piece of evidence that I find to be very significant and which substantially supports the credibility of the complainant.

Animus

[117] As I have previously observed, E.B. is undoubtedly animated by a desire to be hurtful and harmful to her father because of first, the disintegration of her nuclear family and second, her father's attempt to blend her into a new family, which she rejected. Indeed, she gave answers that demonstrated her animus to her father and which she felt was mutual. That animus is a matter that I have taken into account in assessing E.B.'s evidence. But, the significant point is that the W.B. family-law dispute does not reach the complainant. She plays no intentional part in it and there is no evidence that the W.B. family-law dispute was a motivating factor in the complainant's disclosure. To be clear, but for E.B.'s text to A.D. she may never have come forward; but, she did not make her disclosure to promote any family law agenda of E.B. or C.. While the W.B. family-law dispute, and in particular the access by the accused to his youngest daughter, precipitated the complainant's disclosure, that disclosure was not made in support of that dispute.

Whether E.B.'s Evidence Corroborates the Complainant's

[118] Mr. Frith urged that E.B.'s evidence does not support a finding of guilt. If E.B.'s was the only evidence given at this trial that submission would clearly be true. As counsel noted, at most she testified that she saw her father's hand near A.D.'s hip area on one brief occasion and on other occasions she saw her father lying beside or sitting beside A.D. with no impropriety occurring. What she testified to does not amount to a sexual assault. I agree; but, that is not the only evidence. E.B. corroborates that her father was lying beside A.D. and that, as A.D. said, the accused had his hand down at her hip or pelvic area. While that is all E.B. saw, that is not all that the complainant testified to. Equally, E.B. corroborates the complainant's evidence that the accused sat beside her on a couch in the recreation room. On the occasion when he assaulted A.D. for the second time, his body shielded his actions from his daughter, according to A.D.. Again, the evidence of E.B. is corroborative of the complaint.

Contradictions

[119] In my view, there is only one matter of real concern in the Crown's case. A.D. testified that after being assaulted on the trampoline she turned on her side and tried to go to sleep and that E.B. came up behind her and started hugging her though they did not exchange any words. Further, she said that she suffered no physical ill effects of any sort from being fingered by the accused. E.B. said something quite different which the defence urges is irreconcilable; viz. (i) that the girls left the trampoline; (ii) that they spoke about the event, at least inferentially; and, (iii) that A.D.'s complaint connoted vaginal bruising from being digitally penetrated.

[120] Given this discrepancy between the evidence of the two Crown witnesses I accept and rely upon the evidence of A.D.. I do so for these reasons. First, it seems to me that she gave her evidence fairly and evenly and without overt animus or evidence of motive to malign or harm the accused. Second, (as anticipated above,) the fact that, despite a hiatus of more than three years, E.B.'s text to A.D. - "I need a favour. You know when my dad touched you sexually in 2009; I need to know what happened," - demonstrates that E.B. was aware that her father had sexually assaulted A.D. in 2009 but that she did not know the particulars of that assault.

[121] I accept A.D.'s evidence about what happened on the trampoline and I accept her evidence about what happened in the recreation room over the evidence of E.B. because E.B., by sending this text, admits that she did not know what happened. E.B.'s testimony was that she did know what had happened on the trampoline and afterward. That testimony is contradicted by her text message. Moreover, E.B. is clearly biased against her father and therefore disposed to exaggerate in her testimony. These facts cause me to accept the testimony of the complainant where there is a conflict between the two girls.

[122] I believe and accept the complainant's testimony that she was fondled by the W.B. as she described. In my view she described the sexual assaults committed by the accused in a concrete and guileless fashion that seemed unexaggerated and ungilded. Mr. Frith's submission that the lack of physical corroboration is an exceedingly bizarre occurrence is a submission devoid of evidentiary support. That is to say it assumes either expert testimony not called or the imputation of judicial notice of matters outside the ken of that doctrine. Likewise, as observed previously, his submission that the complainant's testimony is inconsistent with a public school curriculum is not a matter for judicial notice. Further, as provided by footnote 4, the lack of recent complaint is a matter that a trier can consider but that lack must be considered against the absence of physical injury, the complainant's isolation and estrangement from her parents at the time of the assaults, her age and lack of experience and maturity at that time as well. Given all of that, I do not have a reasonable doubt about the accused's guilt despite the lack of a recent complaint.

Demeanour

[123] In my view there is no substance to the defence submissions about demeanour or collusion. I disagree with the submission that the complainant gave her evidence in a fashion that calls her credibility into question. It is almost an invariable rule, particularly though not exclusively with complainants, that witnesses will respond with more reticence and less fluidity to questioning by a lawyer representing a party adverse in interest to the witness. To my eye and ear, there was nothing exceptional or untoward about the complainant's demeanour either in direct or in cross-examination.

Collusion

[124] On this evidence there is no substance to the defence concern about collusion. At its highest the defence submits that there was a sufficient period of time to allow the girls to collude in their evidence. But, the evidence is that the complainant did not provide any details to E.B.'s mother so that even if E.B. had been present for that limited disclosure it would not have assisted her in knowing what A.D. alleged. More importantly, A.D. made a detailed statement to a police officer two days later on January 11, 2013 and there is no evidence that the girls shared information prior to that. In my view there is no evidence or even opportunity to support any concern about collusion between the girls.

Motive

[125] I see no motive for the complainant to create false allegations against the accused. Despite that lack of apparent motive I have specifically cautioned myself in the terms required by paragraph [53] of R. v. L.L. (2009), 2009 ONCA 413, 244 C.C.C. (3d) 149 (Ont. C.A.).

[126] Finally, in R. v. L.L. at paragraph [19] the court held that evidence suggesting the absence of any reason to make a false allegation "is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility." The Court of Appeal referred to R. v. Batte (2000), 49 O.R. (3d) 321 (Ont. C.A.) at paragraph [120]:

Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility

[127] I find that applicable in this case. I see no motive for the complainant to create false allegations against the accused. But for being prodded to come forward by E.B. on January 9, 2013, one cannot know whether A.D. would ever have approached the police and made a disclosure to them. However, she did. I believe her and accept her evidence for the reasons given. I find the accused guilty of both counts. Pursuant to Kienapple v. The Queen the count of sexual assault is conditionally stayed and a conviction entered on the count of sexual interference.

Dated at St. Catharines, this 25th day of April 2014

J.S. Nadel (O.C.J.)