Court Information

Court: Ontario Court of Justice

Date: 2015-01-05

Information No.: Sudbury 14-328

Between:

Her Majesty the Queen

— AND —

M.M.

Before: Justice A.L. Guay

Heard on: October 6, 7 and 28, 2014

Reasons for Judgment released on: January 5, 2015

Counsel

Mr. Leonard Kim — counsel for the Crown

Ms. Noemi Paquette — counsel for the accused M.M.

GUAY J.:

THE CHARGES

[1] The accused was charged both with sexually assaulting a child by the name of S.C. and touching S.C. for a sexual purpose contrary to sections 271 and 151 of the Criminal Code of Canada. The offenses are alleged to have occurred in the period between September 1, 2013 and December 24, 2013. The central issue in this case was one of credibility. The accused plead not guilty to both charges.

BACKGROUND

[2] The accused is a 33-year-old man. He suffers from MS and is in receipt of an ODSP pension. He has three children, including two boys, Jordan and Joel, ages 5 and 7, and a girl, Angelica, approximately 2 ½ years of age. He has the care of his two sons on alternate weeks and will see his daughter every second weekend at a time when the boys are with him. He is in a relationship with a lady by the name of Jody Tremblay. Jody Tremblay is the mother of a 10-month-old boy by the name of Justin. When the boys are not in his care, the accused spends most of his time at Jody Tremblay's residence.

[3] The complainant is an 11-year-old girl. She attends school and is in the sixth grade. Because of her Global Development Delay, she is functioning in school at a much lower academic level than the grade she is in. She is the only child of her mother, L.C., and resides with her mother at an apartment in the south end of the City of Sudbury. At the time of the events which are the subject of the present charges, both the accused and the complainant were residing on the first floor of the same apartment building.

CREDIBILITY

[4] In assessing credibility in this matter, there are two related sub-issues which must be canvassed. One is the fact that S.C. is an 11-year-old child; the other is that she is a child who has been diagnosed with Global Development Delay or GDD. The criminal law establishes that a child's evidence does not require corroboration in order to be reliable. There no longer exists in the criminal law today the presumption that a child's evidence is inherently unreliable. This said, there is jurisprudence which tells us that when we assess a child's evidence, we should bear in mind that such evidence may be lacking in details which one would expect to find in the evidence of adults when assessing their credibility. When, therefore, assessing credibility, there is less concern about the lack of details or small inconsistencies in a child's evidence than is the case when assessing the evidence of adults.

THE EVIDENCE OF CHILDREN

[5] In R. v. W.(R.), 2 SCR 122, Chief Justice McLachlan dealt with the issue of how the courts should approach the evidence of young children. Noting two major changes in the recent past, McLachlan C.J. noted that one of these was the removal of the notion that the evidence of children was inherently unreliable and had to be treated with special caution. "The repeal of provisions creating a legal requirement that children's evidence be corroborated" she nevertheless noted "does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case". (see paragraph 23)

[6] The second change, the Chief Justice explained, was "a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children". (see paragraph 24) Since children might experience the world differently from adults, she continued, it was "hardly surprising that details important to adults, like time and place, may be missing from their recollection". The Chief Justice echoed the prior insight of Wilson J., formerly of the Supreme Court of Canada, in R. v. B.(G), 2 S.C.R. 30, pp54-55, wherein Wilson J. called on the judiciary to "take a common-sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults". (see paragraph 24). The trial judge, Wilson J. explained, was expressing concern "that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult." Wilson J. concurred with the trial judge, as evidently the Chief Justice did, with Wilson J.'s views. Wilson J. went on to state that "While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it." (see paragraph 24) Wilson J. and the Chief Justice were nevertheless of the opinion that the credibility of every witness, including child witnesses, must be carefully assessed but, however, insisted that "the standard of the 'reasonable adult' is not necessarily appropriate in assessing the credibility of young children." Concluded the Chief Justice on this point:

Every person giving testimony in court of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying (my italicization). (see paragraph 26)

While the evidence of S.C., the child complainant in this case, is proximate to the alleged events, the Chief Justice's comments insisting on the need to bear in mind a child's age in the determination of a child's credibility, even when later recalling events, should be kept in mind.

GLOBAL DEVELOPMENT DELAY

[7] The unspoken concern of the accused during the trial of this matter was the complainant's Global Development Delay. In her testimony, L.C., S.C.'s mother, told the court that her daughter, S.C., had been diagnosed with this condition. She explained that while her daughter had been integrated into a grade 6 class at school, academically she was operating a grade 2 level. She could, her mother explained, express herself well orally, but not in written form. Anyone viewing S.C.'s interview with the investigating police officer Constable Dewar (see Exhibit 1) would quickly notice her verbal competence.

[8] The U.S. Library of Medicine (see Archives of Disease in Childhood, V 91(8) 2006 August, PMC 208-3045) defines Global Development Delay as a generalized intellectual disability that is usually characterized by lower than average intellectual functioning along with significant limitations in at least two areas of development. The American Academy of Neurology provides a similar definition as do other sources. There is a consensus among reported sources that the condition involves delayed acquisition of milestones and limited reasoning or conceptual abilities. The DSM-5, however, restricts this specific condition to children under the age of 5 "when the clinical severity level cannot be reliably assessed during early childhood." The DSM-5 says the following about the condition:

This category is diagnosed when an individual fails to meet expected developmental milestones in several areas of intellectual functioning, and applies to individuals who are unable to undergo systematic assessments of intellectual functioning, including children who are too young to participate in standardized testing. This category requires reassessment after a period of time (see page 41 of the DSM-5).

[9] Sources agree that the condition is usually defined by the child being diagnosed with having a lower intellectual functioning than what is perceived as normal in the average child. Douglas Silas, a British law firm specializing in education, disability and public law, including special educational needs and Global Developmental Delay cases, defines the term Global Developmental Delay as one used to describe a condition which occurs during the developmental period of a child between birth and 18 years of age. Douglas Silas notes that the condition is usually accompanied by having a significant limitation in communication, noting that the condition apparently affects between 1% and 3% of the population.

[10] An Australian organization, Noah's Ark Children's Services Resources (www.noahsark.net.au) maintains, however, that children diagnosed with Global Developmental Delay will not necessarily have intellectual impairment. This organization points out that early diagnosis of the condition does improve the outcome for those affected with it. It notes that the areas of delayed development include motor skills, speech and language, cognition, social and emotional development and carrying out daily activities.

[11] In assessing the evidence of the accused and his witnesses, I discerned the unspoken argument that S.C. was not too bright and, consequently, that she was unable to appreciate what happened to her with any degree of reliability. The evidence with respect to the hand-made Christmas card which S.C. gave to the accused shortly before Christmas 2013 is, I believe, illustrative of this thinking. The accused and his mother, Claudette Follett, testified that this card was delivered by S.C. to the accused's apartment around December 17, 2013. What struck the accused's mother most was the fact that the Christmas greeting on this card was written sideways in an odd style. The accused's mother testified that it was she who answered the door when S.C. came to deliver the card to the accused and that she threw the card away later in January 2014 when cleaning up the accused's apartment. S.C. testified that she had no recollection of having attended at the accused's residence with the card. The Crown argued that the card was a fabrication on the part of the accused designed to establish that S.C. bore the accused no animosity when she last saw him shortly before Christmas, the period during which he is alleged to have sexually assaulted her. I accept the evidence of the accused and his mother that S.C. did indeed deliver a hand-made Christmas card to the accused shortly before Christmas, but I believe that S.C. simply forgot she had done so. The description of the card offered by the accused and his mother suggested that S.C. had not devoted much time and effort to its preparation. The card, as described by the accused's mother, was crude and childlike in its simplicity and reflected, I find, the nonverbal communication difficulties of S.C. Unlike the accused and his mother, however, I am not persuaded that this occasion was the last occasion on which S.C. had contact with the accused in his apartment.

[12] Other than this card, the evidence of the accused's mother and his girlfriend, Jody Tremblay, suggested that S.C. was a bothersome pest. This evidence, on the part of the accused's mother at least, suggested that S.C. was obsessive in her desire to gain entrance to her son's apartment during the period before Christmas when she herself was present for a time there.

[13] L.C., S.C.'s mother, testified that S.C. was only supposed to go to the accused's apartment when his sons were there. S.C., she said, had a tendency to stretch this limitation on her visits to the accused's apartment. The evidence, however, indicated that S.C. was often bored at home, due to the fact that she had no siblings and that her mother slept in quite often when S.C. was not in school. As a result, the evidence also showed, S.C. was often knocking on her mother's neighbours' doors on the floor of the apartment building where she lived. In the case of one neighbour, Mireille Akiwenze, S.C. enjoyed an open door policy. The evidence further indicated that when S.C. sometimes went to visit the accused, either the children's grandmother or the accused's girlfriend might be there and S.C. was denied entrance. While it is hard to gauge the tenor of the exchanges between S.C. and the accused and other adults who might be in his residence, her interview with Constable Dewar on January 30, 2014, demonstrated that she could be quite communicative if she had to be. (see Exhibit 1) If nothing else, that interview established clearly that S.C. could carry on a normal and uninhibited conversation with an adult without any visible degree of distress and, indeed, with a degree of enthusiasm.

[14] As a result of my observation of S.C., and taking into consideration her academic limitations, I do not find that her Global Development Delay impeded her from answering questions put to her by the investigating police officer. She did so with a degree of ease which a reasonable person could expect of an 11-year-old child. Any suggestion, therefore, that S.C. could not appreciate significant events in her life or relate in a normal way to adults and children in her life is misconceived. This is not to say that she had the greatest level of emotional maturity, an area where she may have been deficient, but simply that she was not unable to appreciate those kinds of things which other children of her age or younger enjoy, such as cartoons or television soaps like "iCarly".

THE ACCUSED'S EVIDENCE

[15] The accused testified in his own defense, indicating that he had met the complainant, S.C., and her mother, L.C., in the fall of 2013. His boys had played with S.C. in the playground adjoining the apartment complex where the accused resided. The evidence showed that it was not long after this happened that S.C. asked her mother if she could play with the boys at their apartment. L.C. testified that she was fine with this, providing, however, the accused agreed, which he did. The accused testified that S.C. came over when the boys were present and that he did not let her into the apartment when they were not. He also testified that he would not allow her to visit when he was busy with the boys, particularly in the evenings when they were with him during alternate weeks or on alternate weekends. He said that on those occasions, he helped the boys with their meals, homework and baths and so he did not have the time to allow S.C. to visit when these activities were going on. He also stated that S.C. would also be refused admission when his mother visited or when his girlfriend came over with her baby. His apartment was not a big one and, he maintained, he felt that adding another child to the mix just caused greater confusion.

[16] In her evidence, the accused's mother indicated that when she was visiting the accused at his apartment, she was there to see and enjoy her grandchildren and not a neighbor's child. I accept the evidence of the accused, his mother and his girlfriend to the effect that when they were over at the accused's apartment, S.C. was not particularly welcome. While this did not please her, which displeasure she once indicated by apparently "growling" or making a noise of displeasure, there seemed to be some consistency in this approach to her persistent attempts to gain access to the accused's residence. The accused's evidence suggested that this denial of entry on a number of occasions motivated S.C. to make false accusations against him. S.C.'s repeated attendances at the accused's apartment in the period between September and December 2013 do, however, suggest something else. What they suggest is that she wanted to be there as often as she could and that she would stretch the limits of the condition placed on her going there, notwithstanding that various attempts to do so were rebuffed by the accused, his mother or the accused's girlfriend. S.C.'s continuing obsession with doing so and, according to the accused's mother, even passing by the outside of the accused's apartment to peek through his windows to see what was happening inside, are evidence of this.

[17] In his testimony, the accused was clear that S.C. did not come over to his apartment during the week. L.C., S.C.'s mother, testified, however, that she had twice been to the accused's apartment with S.C. during the week and that S.C. would go there during the week and on weekends. She noted too that sometimes S.C. would come back, having been refused entry by the accused because he was busy with the boys, he was just going out or his mother was expected. The accused's girlfriend, Jody Tremblay, testified that if she did come over to the accused's apartment during the week with her 10 ½ month old son Justin, she would leave around 6:00 p.m. to return to her own apartment so that he could get on with feeding the boys, helping them with their homework and bathing. She noted that given the boys were in school, she did not want a small baby waking them up during the night and disturbing their much-needed sleep. While she did not recall S.C. being there when she was there, this did happen on at least 2 occasions. What Jody Tremblay could not say, however, was whether S.C. attended at the accused's apartment after she had left. There was, then, opportunity for S.C. to visit the accused's apartment after she had left but before S.C.'s regular bedtime, which L.C. testified was anywhere between 8:30 p.m. and 9:30 p.m. while school was on.

[18] S.C. testified that when the offenses alleged by her occurred, she had gone to the accused's apartment, that his boys were there and that he was giving them a bath. The accused indicated that he gave his boys a bath on Tuesdays and Thursday evenings. S.C.'s evidence about what occurred was that it occurred when both boys were in the bath tub. This had to be at some point between the time he gave the boys their bath (after 6:00 p.m.) and S.C. was expected to be home preparing for bed (8:30-9:30 p.m.).

[19] When questioned about his physical contact with S.C. while she was at his apartment, the accused admitted to both tickling her, like he did to the boys, and giving her a hug once in a while. While he initially suggested that he had given her a "nuggy" (a knuckle rub to the top of her head), he subsequently indicated that he had been mistaken about this. The accused's girlfriend testified that she had seen him both tickling and hugging S.C., but that she had never seen him giving her a "nuggy" or snuggling with her. The accused said that when S.C. came over to play with the boys, she would watch cartoons or television with them and be seated either on the living room couch or on the living room floor. While she had told the investigating police officer that she snuggled with the accused on occasion, in her testimony S.C. could not recall doing so. The accused, for his part, stated that if he were on the couch when S.C. was visiting, she sat on the other end of the couch and not in proximity to him. Notwithstanding a vigorous cross-examination by the Crown on this point, the accused's testimony was not shaken. It may have been that S.C. had indeed sat beside him on the couch, but there was little testimony in support of this allegation. If this did take place, the evidence suggested that the boys would have been present and that nothing unremarkable seemed to have occurred in this respect.

THE COMPLAINANT'S EVIDENCE

[20] S.C.'s birthday occurred on […], 2014. During her videotaped interview with Constable Dewar, S.C. talked with animation about her birthday. For her birthday, she had received a guitar from her mother. On or about the 27th of January, L.C. suggested to S.C. that she attend at the accused's apartment in order to have the guitar tuned and the strings cut. When, however, L.C. made this suggestion, S.C. asked her mother if her mother's friend, L.B., who was visiting, could accompany her to the accused's apartment for that purpose. L.B. did not testify, but did apparently go with S.C. to have S.C.'s guitar tuned and its strings cut. In doing so, the evidence indicated, the accused proceeded to his bedroom where he kept the needed equipment. S.C. did not go into the accused's bedroom but stood at the doorway. A short time thereafter, S.C. returned to her mother's apartment, indicating to her that her friend L.B. was still upstairs having the guitar tuned.

[21] It was at this point, according to both S.C. and L.C., that S.C. told her mother that she did not want to go back to the accused's apartment. She basically told her mother some of what she later told Constable Dewar in his interview of her-- that the accused had touched her bum (touche) and her possum (breast) and that he had asked her to turn around while she was on his bed so that he could touch her in the front. L.C. testified that when S.C. told her these things she had a dejected look (head down) and that when she told S.C. that she was going to call the police, S.C. was against her doing so. This is corroborative of what she told Constable Dewar about how she felt about what had happened at the accused's apartment, that it had made her sad. According to S.C., she had been at the accused's apartment at a time when the boys were being given a bath by the accused. The events happened, she said, before Christmas, when she was not in school. She said that she asked the accused for a glass of water and that he told her to go to his bedroom and that he would bring her some water there. Once back with the water, she recounted, the accused told her to lie down on his bed and proceeded to touch her on her bum and her breasts, not saying anything until, at one point, he asked her to turn around so that he could see her front. She said that he did stop at one point to go and check on the boys who were in the bathtub. While she allegedly told her mother that the accused had pinned her on the bed or the wall adjoining the bed, she had no specific recollection of this when she testified. What comes through in her evidence, however, is that the position she occupied on the accused's bed left her obstructed in her ability to move away. S.C. could not recall whether, when the accused touched her possum and kissed it or them, he accessed her breast(s) from the top of her 2 t-shirts or from the bottom of them. She did recall how the accused was dressed, though, indicating that he was wearing jeans and a t-shirt. She also described his bed, the comforter on it and the contents of the walk-in closet in the accused's bedroom. While she had been in the vicinity of that closet on one or two occasions, her knowledge of its contents suggests that she had more than a passing acquaintance with the accused's bedroom.

[22] According to S.C., the events did not take a long time to occur. They came to an end when she told the accused that it was time for her to go home. The evidence suggested that she had managed to get up and tell the time from the accused's computer which was located either in the accused's bedroom or in the nearby living room. She said that this event happened before Christmas but she was not exactly sure of the date, even though from her evidence it is inferable that it must have been at some time before 8:30 p.m., the time she is supposed to be home getting ready for bed.

[23] While it is difficult to pinpoint the exact date of the alleged events, they appear to have occurred at a time when the accused's boys were residing with him and when neither his mother nor his girlfriend nor his young daughter was visiting. It should be recalled that when asked by her mother how often such events had taken place, S.C. indicated first that these things had happened about 10 times. She then changed her mind and stated that they had occurred five times before and then once or twice. The evidence, however, failed to establish that the alleged offenses occurred on more than one occasion.

[24] The evidence of the accused and his mother sought to establish that the opportunities for such an event or events to occur in November or December 2013 were extremely limited. It appears from the evidence that the accused's mother had been at his apartment on two occasions in December, one at the end of the first week of December and the other around December 17th. While it is credible that on those occasions S.C. was denied access to the accused's apartment, the evidence indicates that there were certainly other occasions when neither the accused's mother nor his girlfriend were present in his apartment but his 2 boys were. If the accused has sought to establish that there was no opportunity for S.C. to end up with him in his apartment in December 2013, during which time he allegedly sexually assaulted her, his evidence fails to establish this. His mother only came twice in December and when his girlfriend visited, she left by 6:00 p.m. Exactly how long his mother stayed at the accused's apartment on those occasions is not clear, but the evidence does not suggest that her visits were lengthy. There is evidence establishing that he was alone with his sons on many occasions without the presence of either his mother or his girlfriend.

ANALYSIS

[25] I listened to and carefully considered the evidence of the accused and his witnesses. The accused denied being alone with S.C. in his apartment which was located across the hall from hers. He argued that she was only allowed in his apartment when his sons were there and not when they were absent. I accept that this was so. He also maintained that on the many occasions when his mother and girlfriend were visiting or residing with him, S.C. was not allowed access to his apartment to play with the boys, especially after November 2013 when his daughter Angelica started visiting him on alternate weekends. I accept that after November 2013, S.C.'s access to the accused apartment became more restricted than it had been prior to the start of his access to his daughter every second weekend. I also accept that when his mother or his girlfriend were in residence, S.C.'s access to his apartment was also limited if not prohibited because the apartment was too small to accommodate the accused, his boys, his girlfriend and her infant son and his mother. The accused did not seem annoyed by S.C.'s persistent attempts to gain access to his apartment and, in fact, suggested that he had tried to treat her like one of his children when she did visit. Nothing he admitted to doing suggested any prior attempts to sexually interfere with S.C. or sexually assault her. In general, the accused presented as a normal, devoted father, partner and neighbour. This is why L.C. said she trusted him to have S.C. in his care. In summary, I find that the accused was more than vigorously cross-examined by the Crown and withstood this questioning well, answering fairly consistently the questions put to him.

[26] I listened carefully to and considered the evidence of S.C. and the Crown. I was impressed by the candidness of S.C. and the easy manner in which she gave her evidence. Bearing in mind the instruction of the Supreme Court of Canada about how to assess the credibility and evidence of children, I carefully considered the arguments made by the accused urging that I not find S.C.'s evidence credible and that I reject same. I cannot do so. There was a certain naïveté in the way S.C. responded to the investigating police officer's interrogation. I looked for but could find no malice on her part or that of her mother for that matter with respect to the accused. While I found that S.C.'s desire to access the accused apartment was persistent and even bothersome, I do not find her failure to do so on many occasions caused her to become angry with the accused and seek revenge on him. I accept that she did prepare a Christmas card for him and that she delivered it to his apartment not long before Christmas 2013. Her attendances at the accused's apartment and her rather surprising and sudden unwillingness not to want to return there one month later stand in stark contradistinction to each other. What could have happened to this child between the time she gave the accused a handmade Christmas card and the time that she refused to bring her birthday present to him so that he could tune it one month later? What could have happened that would shake her obsession with accessing the accused apartment in so short a time unless it was the way in which he treated her the last time she was there? S.C. may have developmental weaknesses, but the evidence indicates that she is a very social and extroverted child. Notwithstanding her disability, she is still capable of playing with other children, including the accused's boys, refusing to be isolated in her mother's apartment. The story she gave about what happened to her before Christmas 2013 and, according to her, at some time in December 2013, makes sense. While she did become a little more confused about those events as her cross-examination took place, and the details she provided became a little sketchier, the main elements of her story were not successfully challenged by the accused. She described how the events were initiated, who was there, where the events took place, and what was in the walk-in closet in the bedroom where the events took place. She described what was done to her and how she reacted to these events, with a desire to flee and not return to the situation and the place where previously she had so much wanted to be almost all the time, to the point of constituting a nuisance to other persons visiting there.

[27] Before concluding, it is useful to comment on the findings of credibility as they relate to the concept of proof beyond a reasonable doubt. It happens that a trial judge may believe a complainant but may not be satisfied on the whole of the evidence that the Crown has proven the guilt of an accused beyond a reasonable doubt. It happens too that a trial judge may not believe an accused but, because the accused has raised a reasonable doubt or because on the whole of the evidence the trial judge cannot find that the Crown has proven the accused guilty beyond reasonable doubt, the accused will be acquitted. On the other hand, there are occasions like the present one when the accused has consistently denied his guilt and has not been successfully challenged in his denial of guilt by the Crown.

[28] Like most trial judges, I am mindful of the Supreme Court of Canada's direction in R. v. W.(D.), 1 SCR 742 about how to handle issues of credibility. We are instructed that if we believe the accused, he or she must be acquitted. We are further instructed that if we do not believe the accused, but the accused raises a reasonable doubt, the accused must be acquitted. Lastly, we are instructed that if we do not believe the accused and we are not left in doubt by the evidence of the accused but on the whole of the evidence which we do accept we find that the Crown has not proven the guilt of the accused beyond a reasonable doubt, the accused must be acquitted. The burden of proving guilt beyond a reasonable doubt, we are reminded, always rests on the Crown.

[29] In R. v. J., JRD, 215 CCC(3d) 252, a case involving the sexual assault of a daughter by her father, the Ontario Court of Appeal dealt with the question of the sufficiency of reasons on the part of trial judges. In doing so, the Court also spoke to the interrelationship between a finding of credibility and the requirement that a criminal charge must be proven beyond a reasonable doubt. In carrying out their work, the Court insisted, appellate courts needed to understand the process whereby trial judges arrived at a determination of guilt or innocence. It was, the Court explained, insufficient for a trial judge to make a finding of credibility on the part of one of the parties and proceed immediately from there to convict the other party without explaining the process whereby such a decision was arrived at. This should not be done, certainly not without explaining how the trial judge had arrived at his or her conclusion.

[30] Pointing out that the trial judge in the case before the Court (R. v. J., JRD) had considered the principles enunciated in R. v. D.(W.), 63 CCC(3d) 397 with respect to assessing credibility in determining the accused's guilt or innocence, Doherty J.A. stated:

The trial judge carefully assessed the evidence of A.D. (the complainant). He was alive to the potential frailties in her evidence, particularly the fact that she had provided many details of the alleged assault in her evidence that she had not given in her earlier statements and testimony. The trial judge expressly alluded to many of the inconsistencies between her testimony and her earlier statements. He also took into consideration the circumstances surrounding her testimony. The trial judge ultimately determined that A.D. was a credible witness. He gave reasons for this conclusion. The basis upon which the trial judge found A.D. credible is readily apparent in the entirety of the record including his reasons. His assessment of A.D.'s credibility is readily reviewable on appeal by this court.

[31] Having made this observation, Doherty J.A. went on to note that the trial judge in the case had not proceeded "directly from a finding that A.D. was credible, to a finding that the allegations were proved beyond a reasonable doubt. To the contrary, he wrote, the trial judge recognized the distinction between a finding of credibility and proof beyond a reasonable doubt. Despite his findings that the complainant, A.D., was credible, the trial judge had not been prepared to conclude beyond a reasonable doubt that the buggery alleged by her had occurred, presumably because A.D. had not adverted to the buggery until very late in her testimony. "The trial judge" Doherty further observed, "also acknowledged that there was nothing in the substance of the appellant's evidence or in the manner in which he gave his evidence which would cause the trial judge to disbelieve that evidence." "Once again", he noted, "this aspect of his reasoning is readily apparent." (see paragraphs 46, 47, 48 and 49)

[32] The trial judge's analysis, Doherty J.A. concluded, demonstrated his assessment of the evidence and how this led him to his conclusion, as a result of which the Court was able to carry out its work. The trial judge had, in the end, rejected the accused's evidence denying guilt once he had compared it to the complainant's evidence and what he found to be corroborative evidence in a diary kept by the complainant. The absence of "any obvious flaws in it" when compared to the contrary but credible evidence introduced by the Crown had led the trial judge to reject the accused's evidence.

CONCLUSION

[33] I found the complainant's evidence to be very credible, notwithstanding that she was unable to specify the exact date with respect to which the events alleged by her occurred. What does stand out in her testimony is her candidness and the lack of any real motive to make false allegations against the accused. The fact that her "obsession" to gain access to the accused's apartment came to an abrupt end suggested that something happened to cause her to not want to return, certainly not without an adult present. When one asks what could have caused this about-face, the complainant's allegations provide an easily understandable reason: she was afraid to return to that residence because of what had happened there at some time before Christmas. Recall too that that when her mother, when she learned of the alleged abuse and announced that she would go to the police, S.C. did not want her to do so. I found that S.C. provided sufficient details for a child of her age about what had happened when the accused interfered with her and the circumstances in which he had done so. She recalled what she was wearing and what he was wearing. She recalled that his sons were present and that they were unable to witness what happened because, being in the bathtub, they were not free to come and observe what was happening. While her recollection of some of the details was lacking, she was consistent that the accused had both touched her buttocks and her breasts. She never wavered from this version of what had occurred. There was, needless to say, a lot of opportunity for the alleged sexual interference to occur, such episodes generally not taking more than a short time to occur. While struggling with Global Development Delay, the complainant showed herself to be not only loquacious and able to easily recount what had happened to her but also fairly intelligent in speaking with the investigating officer and other adults in her life.

[34] The accused denied he sexually assaulted or interfered with S.C. He sought to prove that the opportunities for committing the alleged sexual offenses were few and far between. I do not find this to be the case, notwithstanding that the complainant was barred on many occasions from accessing his residence to play with his boys because either he was occupied with them or because his mother or girlfriend were visiting or staying with him. I accept the evidence of S.C. I find on the whole of the evidence that the accused did sexually interfere with S.C. by touching her body with his hand for a sexual purpose contrary to Section 151 of the Criminal Code of Canada. I therefore convict the accused of that offense. In light of the principle enunciated in R. v. Kienapple, [1975] 1 S.C.R. 729, however, I will stay conviction of the accused for sexual assault contrary to s. 271 of the Criminal Code of Canada.

Released: January 5, 2015

Signed: "Justice A.L. Guay"