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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: July 4, 2016

Court File No.: Brampton 14-8440

Between:

Her Majesty the Queen

— and —

R.C.

Before: Justice Paul F. Monahan

Heard on: September 10 and 11, 2015 and June 17, 2016

Reasons for Judgment released on: July 4, 2016

Counsel:

• S. Ferrone, counsel for the Crown
• C. Assie, counsel for the defendant R.C.

MONAHAN J.:

Introduction

[1] R.C. is charged with sexual assault contrary to section 271 of the Criminal Code of Canada (the "Code") and touching for a sexual purpose a person under the age of 16 contrary to section 151 of the Code. The offences are alleged to have taken place on or about May 25, 2014.

[2] The complainant is N.M.. Both she and her brother D.M. testified at the trial as part of the Crown's case. N.M. was 3 years and 10 months old at the time of the alleged sexual assault and just over 5 years old when she testified at trial. D.M. was 9 years and 4 months old at the time of the alleged events and about 10½ years old when he testified at trial.

[3] On consent, I made orders that permitted the complainant and her brother to testify outside the courtroom via video link from a room adjacent to the courtroom. Both were permitted to have a support worker with them as part of my order.

[4] Each of N.M. and D.M. had their respective videotaped statement played for them at trial which statement each made the day after the alleged offences and each of them, while testifying, adopted the content of their respective recordings as true. On consent, I admitted into evidence these videotaped statements pursuant to section 715.1 of the Code. Both children gave further evidence at trial and were cross-examined. The mother of the children, E.M., also testified as part of the Crown's case.

[5] The defence called no evidence but relied upon the videotaped statement of R.C. which he gave to police on June 2, 2014 which the Crown ultimately agreed to put in as part of its case. The tendering of this evidence came about as follows: the Crown indicated at the outset of the trial that it only intended to use the statement of R.C. for impeachment purposes should he choose to testify. The Crown sought a ruling as to the voluntariness of the statement and the defence submitted that it was not voluntary. For written reasons, I ruled that the statement was voluntary. It was subsequently agreed between the Crown and the defence that the Crown would put R.C.'s statement in for the truth of its contents as part of the Crown's case which it did. In these circumstances, R.C. chose not to testify and called no evidence.

Facts and Evidence

[6] The central contested fact in this case is whether R.C. sexually assaulted N.M. by touching her vagina with his hand when she was showing him her room on May 25, 2014. In order to prove the charges, this is a fact that the Crown must prove occurred beyond a reasonable doubt.

[7] There were certain facts which were common ground between the parties. There is no doubt that E.M. and her husband R.M. (the father of N.M. and D.M.) hosted a dinner gathering at their home on or about May 25, 2014. In attendance were E.M., R.M., N.M., D.M., E.M.'s parents, a cousin of E.M. and his wife, and a sister in law of E.M. and her husband. R.C., also known as "A.", a 41 year old longtime family friend of the M.'s, was also invited and in attendance. He knew N.M. and D.M. and got along well with them. His parents and E.M.'s parents have known each other for more than 40 years and, for a time, R.C. lived with his family in the basement of E.M.'s parent's home when E.M. and R.C. were children.

[8] There is some dispute about when dinner was served with E.M. thinking it was around 1 AM and R.C. saying it was around 9 PM. There is no dispute that at some point during the evening R.C. went upstairs with N.M. at least in part because N.M. wanted to show R.C. her room which had just been redecorated. D.M. was upstairs at the same time playing a computer game in his room with the door open. There is no dispute that the defendant was only upstairs for 5 to 10 minutes. At some point after coming downstairs N.M. told her mother that A. had "done something to her". Nothing was said to R.C. at this point in time and the party broke up around 2 AM with everyone going home.

[9] R.M. telephoned R.C. a short time after everyone had gone home and apparently accused him of having touched N.M.'s vagina which R.C. denied and, at the same time, offered to come over to discuss further but was told that he should not come. R.C. also texted R.M. the next day with a view to discussing the matter further but no further discussion took place.

[10] E.M. physically examined the child that evening and detected nothing out of the ordinary. The child was also taken to the hospital that night and it is common ground that there were no physical injuries detected.

[11] I will briefly summarize some of the further evidence of the witnesses so as to provide a framework for the determination of the contested factual question of whether or not the sexual assault has been proved beyond a reasonable doubt. This is not a complete statement of all of the evidence and I may expand upon some of the evidence in my analysis below.

N.M.

[12] N.M. gave her video statement to the police on May 26, 2014, the day after the alleged sexual assault.

[13] On the video, she testified to seeing a police officer in the hospital and going to the hospital. She said that she went to the hospital so that they could check her "private". She was asked why they needed to check her private and she said "someone touched me in the, in my private".

[14] She was asked who had touched her private and she said "A.". She said she was showing her room to A. at the time. She was showing him her TV in her bedroom. She said they were "sitting" on the bed. She said A. touched her "inside my private".

[15] She was asked how it felt and she said it felt "mean". When asked about what she meant by that she said that "he's mean to me" and he says "this is mine, this is mine". When asked to explain this latter point, she said that he says "my food, everything" and then when asked to explain further said "I don't know". It is not at all clear from the child's evidence that the "this is mine" reference had anything to do with the alleged touching or occurred at the same time.

[16] She testified that she went to bed after the alleged assault and that "my cousin, L., said so".

[17] She then said in her statement to police that at home at the time of the alleged assault were A., her brother and her parents and "nobody else".

[18] She said she was wearing "fireworks" shorts and a T-shirt and nothing under her shorts. In the video, she did seem to confirm that she was wearing underwear at the time of the alleged sexual assault and pulled up the sides of her shorts to show her underwear to the police officer taking the statement.

[19] After the video was played at trial, she gave further supplementary evidence. She testified that when A. touched her she was wearing underwear and that he touched her under her underwear. She also explained that she had a different name for her private part. She called her private part her "chuchi".

[20] She said that no one else was in her room at the time and that she told her mother and father what happened as soon as he touched her.

[21] In cross-examination, she said she likes the movie "Frozen". She said she also liked Cinderella. She also said she had a poster in her bedroom with princesses on it.

[22] She said that she has underwear with a Cinderella princess on it and that these were her favourite underwear. She denied ever showing her princess underwear to a little boy or having her parents tell her that it was not appropriate to show her princess underwear to a boy.

[23] She was asked if she showed her princess poster to A. and she said that she had not done so as she had a Mickey Mouse poster. She then said it was possible she had a princess poster from the movie "Frozen".

[24] She was asked if she tried to show her princess underwear to A. and she said no, that was not possible.

[25] It was also suggested to her that she was mistaken when she said that A. had touched her private. She disagreed with this suggestion and said "wrong".

[26] She said she thought that her brother D.M. was upstairs with her cousin G. (a teenager) when she was with A. in her room. She was asked if D.M. had come in to her room when A. was there and she said that he had not. She also said that it was not possible that she went to D.M.'s room with A..

[27] She also testified at trial that the children in attendance at her home the night of the alleged assault were D.M., G., M. (age 2) and T. (age 4).

D.M.

[28] As indicated above, D.M. was approximately 10½ years old at the time of his trial testimony and was 9 years and 4 months old at the time of the alleged sexual assault.

[29] He gave a videotaped statement to police on May 26, 2014 which was admitted into evidence and he gave supplementary evidence at trial as well.

[30] He said he was at a friend's house in the afternoon that day. He said that he was there until 11 o'clock. He appeared to mean 11 PM but was unclear on this point. He said that his father came to get him at his friend's house. D.M. had a bike and his father drove a car. It was dark outside and they went together with his father driving the car.

[31] When he got home he said hi to everybody and then he went upstairs to play Minecraft, a computer game. He played Minecraft before and after dinner.

[32] At some point, he and A. and his sister went upstairs. His sister had wanted to show A. her room. He clarified that he had gone upstairs first and was playing video games. Then his sister and A. came up.

[33] After they got upstairs he said it was really quiet so after one or three minutes he looked in N.M.'s room. The sister was right next to A. on the bed. At some points in his statement to police he said that they were sitting on the bed and other points he said they were lying on the bed. He said to the police that he went in N.M.'s room and "after I looked I went back out".

[34] A. also came into D.M.'s room. D.M. had said that that he (D.M.) was playing hunger games in Minecraft. A. just looked at it and then left.

[35] A few minutes later A. and N.M. went downstairs. He was still in his room but after a little bit he went downstairs too and sat on the couch. He said that his sister said that A. was touching her "chuchi" which is a name that their grandfather made up for the private part.

[36] He said they were upstairs for probably 10 minutes.

[37] He said that his door is open when he is playing video games and that his door was open that day.

[38] He said that N.M.'s door is normally open or sometimes a crack open or sometimes closed.

[39] In supplementary evidence at trial after the video, he repeated that he went in to check on N.M. and A. because it was quiet. He doesn't know if they noticed. He said the door was wide open. He said that A. was lying down and she was lying down too and they were watching the television. He was challenged on whether they were sitting or lying down and he held to the position that they were lying down.

[40] He said the chronology was that A. and N.M. were in N.M.'s room, and then he went to check on them because they were very quiet and then A. was in his room where D.M. showed him his video game and then they went downstairs.

[41] He acknowledged that there was sound from his computer game and from N.M.'s television.

[42] He said he thought N.M. had a princess poster on her wall. He was asked if N.M. had shown her princess underwear to a friend and he had to tell his parents and he said no that didn't happen "for sure".

[43] He said that the night of the alleged sexual assault there was present in the home two uncles, two aunts, his grandparents, his mom and dad, his sister and A.. He was asked if G. was there and he said he did not remember. He was asked if M. (another child) was there and he said that he was not there.

E.M.

[44] E.M. was 31 years of age at the time of her testimony. She is the mother of N.M. and D.M. and she is the spouse of the children's father, R.M..

[45] On May 25, 2014, they hosted a gathering. R.M. was home. Her parents were there as well as a cousin and his wife and a sister-in-law and her husband as well as A.. Knowing that they were all getting together, A. had texted E.M. and she invited him to come as well.

[46] A. is an old family friend. Her parents knew his parents for many years. When A. first came to Canada as a young boy, he and his family lived in the basement of E.M.'s parents' home. A. is regularly invited to family events. They get together with A. and other friends on a regular basis, every Friday or Saturday night.

[47] She said that her parents were already there but that everyone else came over around 9 or 9:30 PM.

[48] She said they ate dinner about 1 AM. After that, N.M. was excited to show A. her room. D.M. was also excited to show A. something to do with Minecraft.

[49] A. went upstairs with the kids for about 5 to 10 minutes and then came down. She said that A. and her son came down first. N.M. then came down and sat on the lap of her mother. N.M. said that A. had done something to her.

[50] E.M. thought that some of the men had already left to get the cars when A. was upstairs with the children but that the women were still there as was her father. People were getting ready to leave. Her husband was at the table. Her mother was gathering stuff off the table.

[51] When N.M. told her what had happened, N.M. appeared nervous. The child's voice was pretty loud. She and her husband both heard it. They were kind of embarrassed. They stopped her from saying it again.

[52] She didn't know how her daughter had been touched. She wanted to find out first and didn't want A. to hear. She told her daughter not to say anything and her daughter responded "but he did".

[53] She didn't speak to A. about what N.M. had said. She wanted to make sure. She said that N.M. was very young. E.M. initially thought that maybe A. did do something "but it wasn't in that way".

[54] She wanted to get everyone out of the house and everyone went home. Before that happened, A. asked E.M. if he could get Grand Theft Auto (a computer game) for D.M. and she didn't think it was appropriate so she said no.

[55] After everyone had left, she took N.M. upstairs to her room and spoke to the child. She gave the child different scenarios.

[56] It was now after 2 AM. After that conversation she spoke to her husband. She asked her husband to speak to N.M. which he did.

[57] The parents took the child to the hospital that night. The parents contacted the police while at the hospital.

[58] E.M. inspected her daughter's private area and there did not appear to be anything abnormal. The same was true of the hospital examination as E.M. understood it.

[59] She confirmed that they ate around 1 AM. This was common for them and the children. There were no other children in the house that night other than D.M. and N.M.. The children stayed up eating at the table that night.

[60] E.M. said that she teaches her children appropriate behavior. She was asked about her daughter showing her princess underwear to another boy. She said it was to her brother D.M.. She said that it happened a few weeks before the alleged incident with A.. She was there and she saw and told N.M. not to do that. She said she corrected the child for her inappropriate behavior. She teaches her children respect for others. For example, she gets them to turn around when she herself is changing.

R.C.

[61] R.C. gave a videotaped statement to police on June 2, 2014. Despite submissions by the defence to the contrary, I ruled that the statement was voluntary. The Crown then agreed with the defence to put statement in as part of the Crown's case. The defence ultimately relied upon the statement in submitting that the case had not been made out against R.C..

[62] R.C. was already under arrest at the time of his statement and was told by police that he would be charged with sexual assault and sexual interference. He consulted with duty counsel prior to making his statement and was apparently advised by duty counsel not to speak to the police. He indicated to the police that he wanted to give a statement in any event because he had "nothing to hide".

[63] In his statement, R.C. explained that he was a longtime family friend of the M.'s. He said he was 41 years of age.

[64] He denied touching N.M.'s vagina at any time. He said he went to see the child's room as the child wanted to show it to him. He said that D.M. went upstairs as well. He said that he was in N.M.'s room with her and that she pointed to a princess poster on her wall and stated "I have it on my underwear too" and then she pulled her pants or shorts down to show her underwear to R.C.. He responded by saying "what are you doing" and he pulled her pants back up (apparently by the waistband on the side of her legs) and he told her that she should not do that and that he was going to tell her mother. He said that the child responded "no, no, no" and closed the door and that he opened the door and they went downstairs. He said that she jumped on his back as they were going downstairs and that D.M. came with them.

[65] R.C. stated that the child had "flinched" when he pulled her pants back up. He said that in this sense he had touched her because he pulled her pants up but denied any wrongdoing. He said he would never touch a child inappropriately and did not touch N.M. improperly. He also said that at some point she had opened up her drawer and attempted to show him more princess underwear.

[66] He acknowledged that he was sitting on the bed and that at some point she was also sitting on the bed "for seconds". He said that D.M. had been "in and out, in and out, in and out" of N.M.'s room.

[67] He testified that these events happened before dinner, some four or five hours before the gathering broke up.

[68] He speculated that N.M. was making up the allegation against him because to her it was "a game" and that she probably thought that he was going to tell her mother as to what she had done trying to show him her princess underwear. He said that he did not report the child that night as he did not want to see her get spanked although he had never seen the child spanked at any time before.

[69] The father, R.M., phoned him shortly after the gathering had broken up. R.C. had gone home and was sleeping. He said that R.M. suggested to him that he had touched the child inappropriately and he denied it and offered to come over to discuss it but the parents did not want him to come. He did not mention to R.M. the princess underwear version of events set out above. He said that he didn't tell him because he did not want the child to get spanked and get in trouble. He also stated that he was in shock. He texted the father the next day in an attempt to get in touch with him to discuss it further but the father did not get back to him.

Law

The Law with Respect to Credibility

[70] The Supreme Court of Canada has determined the legal framework to be applied when determining credibility cases such as this one. In R. v. W.(D.), [1991] 1 S.C.R. 742 at para. 28, the Supreme Court of Canada said that trial judges should use a three-step process as follows:

(1) First, if you believe the accused, you must acquit;

(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and

(3) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[71] In applying the foregoing framework, it is important to recognize the following further points:

(1) The criminal justice system stands on at least two critical pillars. The first is the presumption of innocence. The second is that the burden of proving all of the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to prove anything and the burden of proof never shifts to the accused: R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 9.

(2) The assessment of credibility will not always lend itself to the rigid adoption of the three distinct steps set out in W.D.. What matters is that the substance of the W.D. instruction be respected and followed. In this regard, the trial judge must decide whether the Crown has proved the guilt of the accused beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 23.

(3) In undertaking steps 1 and 2 of the W.D. framework, the Court must consider all of the evidence, not just the accused's version of events in isolation: R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at para 15.

(4) Reasonable doubt may survive a finding that a complainant is credible: R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 47. A similar, but slightly different, point flows from the comments of the Ontario Court of Appeal in R. v. Strong, 2001 O.J. No. 1362 (C.A.) at para 5 where the Court said:

"The question is not simply whether the complainant's evidence was reliable, but rather, when considered in the context of the totality of the evidence whether it established guilt beyond a reasonable doubt"

(5) The second step of the W.D. analysis needs to be carefully considered. As Justice Binnie for a unanimous Supreme Court has pointed out, a trier of fact may wonder if they believe none of the evidence of the accused how could such evidence raise a reasonable doubt. Justice Binnie for the Court explained this issue as follows: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and raise a reasonable doubt; or (ii) the trier of fact may simply conclude that they don't know whether to believe the accused's testimony or not. In this circumstance, the accused is entitled to an acquittal: R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 11.

(6) Even if the accused is entirely disbelieved and the trier of fact is not left in a reasonable doubt by the evidence of the accused (or other conflicting evidence), in order for there to be a finding of guilt the trier of fact must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.

(7) The W.D. framework described above applies even where the accused does not testify. The W.D. analysis applies wherever there is conflicting evidence called by the defence or arising out of evidence favourable to the defence in the crown's case. This may include a statement of the accused adduced in the Crown's case. The conflicting evidence may be believed, or, even if not believed, may leave the Court in a state of reasonable doubt as to the accused's guilt and if so the Court must acquit (see Sopinka, Lederman, Bryant and Fuerst, The Law of Evidence in Canada (fourth edition) at para 5.99 citing R. v. D.(B.), 2011 ONCA 51, 266 C.C.C. (3d) 197 (Ont. C.A.). See also David Watt, Watt's Manual of Criminal Jury Instructions (second edition) at page 271.

(8) The Court is not to treat the assessment of the evidence as a credibility contest by simply preferring the evidence of the Crown's witnesses over the defence's witnesses: R. v. Hull, [2006] O.J. No. 3177 at para. 5.

(9) The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B., 79 C.C.C. (3d) 257 (S.C.C.) at page 300; R. v. M.W.M., [1998] O.J. No. 4847 (C.A.) at para 3. However, the defence does not have to prove a motive to lie by the complainant. A motive to lie is also relevant to the testimony of the accused as a witness. However, this is only one consideration in assessing the evidence of an accused and the Court must be particularly cautious not to ignore the presumption of innocence and to make an assumption that an accused has a motive to lie simply to secure an acquittal: R. v. Murray, 115 C.C.C. (3d) 225 (Ont. C.A.) at para 11-14.

The Meaning of Reasonable Doubt

[72] The Supreme Court has said the following about the meaning of reasonable doubt:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

[73] The Supreme Court of Canada has also stated that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Layton, 2009 SCC 36, 244 C.C.C. (3d) 417 at para. 36 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.

Child Witnesses

[74] "There is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children": R. v. W.(R.), [1992] 2 S.C.R. 122 at p. 133. "A contradiction in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult…[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it": R. v. B.(G.), [1990] 2 S.C.R. 30 at pp. 54-55.

[75] "… [W]hen it comes to assessing the credibility of children, the trier of fact should first assess the intelligence, maturity, experience and cultural background of the child, and then decide whether any of the alleged inconsistencies or inaccuracies in the evidence are significant given the witness's background that is before the court. The mere fact that the witness is a child does not mean that inconsistencies or inaccuracies lose their significance. All of this, of course, must be weighed in the light of the evidence of the accused and his or her witnesses": R. v. Horton, 1999 BCCA 150, 133 C.C.C. 340 (B.C.C.A.) at p. 348.

Analysis

[76] I must apply the foregoing legal principles to the facts of this case. As indicated above, in a case such as this one, the function of the judge is not to simply choose who he or she believes and then decide the case accordingly. Rather, the Court must ask and answer the fundamental question: has the Crown proved the case beyond a reasonable doubt?

[77] As I approach the first and second branch of the W.D. test, I have concluded that while I do not clearly believe R.C. and consider that there are some problems with his evidence given by way of his statement to the police, I cannot say, in my consideration of the evidence as a whole, that I disbelieve his evidence as to what occurred in the bedroom including his adamant denial that he touched the child's vagina. Put another way, I consider that his story to the police, considering the evidence as a whole, raises a reasonable doubt as to his guilt. I have a reasonable doubt about the guilt of the accused in this case for the following reasons.

[78] First, R.C. says that the child pointed to the princess poster in her room and pulled her shorts down to show him her princess underwear and that he pulled them back up. He says that she was pointing out that she had the same type of princess on her underwear as on the princess poster in her room. He was not asked by police nor did he explain whether she had pulled her underwear down as well as her shorts. This is the version of events that R.C. told to police on June 2, 2014, about nine days after the alleged incident. The child denied in her evidence at trial that she had tried to show her princess underwear to R.C.. The mother of the child testified at trial that a few weeks before these alleged events, the child showed or tried to show her princess underwear to her brother and was admonished by her mother for doing so.

[79] A couple of observations are worth making here. Both N.M. and her brother denied that she had shown her underwear to another boy. It could be that they were confused by this question as it was not put to either of them that she had shown her princess underwear to her brother (rather than some unnamed boy). It could also be that by the time the matter proceeded to trial, some 16 months later, they simply forgot about the event their mother testified to. Nevertheless, the story is similar to the story R.C. says happened to him on the night in question.

[80] The Crown argues that we don't know whether R.C. knew about the underwear incident with the brother prior to giving the statement to police. Perhaps he learned about it from the mother (or elsewhere) and then incorporated it into his own explanation to police so as to give his version of events a degree of legitimacy. However, to approach this issue in this manner would be speculative on the Court's part. Not only that, the speculation would be in the Crown's favour and contrary to the interests of the accused. There is no evidence on the record before the Court that R.C. knew about the underwear incident with the brother at the time he gave his statement to the police. If such evidence was available, the Crown could have tendered it. The fact is that the version of events the defendant told to the police on June 2, 2014 is strikingly similar to something the child did in the presence of her mother a few weeks earlier. Further, the princess poster on the bedroom wall is also important because it has a link to the underwear story. I note as well that at first N.M. said in her testimony that there was no princess poster to show A.; only a Mickey Mouse poster. Upon further questioning by defence counsel she allowed that she did have a princess poster and that it was possible that she had it at the time of the alleged incident. Her mother gave similar evidence at trial. She at first said that the child had a Mickey Mouse poster but then said that she also had a princess poster in her room.

[81] To summarize on this point, there is evidence which supports R.C.'s version of events that she pointed to a princess poster and then showed him her princess underwear. Her mother confirmed in her testimony that she had done something similar with her brother a few weeks earlier. Two witnesses confirmed that she had a Princess poster and N.M. also confirmed that the princess underwear were her favourite. This evidence provides some support for R.C.'s version of events.

[82] The second point in support of the reasonable doubt analysis has to do with the child's evidence about who she thought was present the night of the alleged incident. Before explaining this point, I will say clearly that both N.M. and her brother D. were both good witnesses. They were clearly witnesses who understood the importance of telling the truth. Indeed, it is my view that N.M. is probably correct when she says that R.C. touched her vagina with his hand but I have a reasonable doubt about it. The Court cannot convict a person of a criminal offence based only on the conclusion that it probably occurred. Notwithstanding that I believe that N.M. was doing her best to give truthful and clear evidence there were certain concerns I had about her reliability. She was clearly mistaken as to who was present in the house that night. When she gave her police statement the next day she said that her cousin, a boy named L., was there. L. is apparently six-years-old. She said in her statement to police, when asked what she did after the sexual assault, that "I just went to bed… my cousin L. said so". Elsewhere in her statement to police, she said that the night of the alleged sexual assault, A. as well as her mother and father and brother were the only people in the house. At trial, she said that, among other people, four children were in the house that night: L., G., M. and T..

[83] We know that N.M. was wrong in her police statement and trial evidence about who was there that night. There were no other children in the house other than her brother and this is confirmed by the evidence of her mother. In addition to her mother and father, other adults, including her grandparents and other adult cousins and relatives were present in the house that night at the get together that was taking place.

[84] In my view, the question of who was there that night is the kind of inconsistency a child of N.M.'s age could be mistaken about but still not be mistaken about the alleged sexual assault itself. However, in my view, these inconsistencies cannot simply be completely ignored. Considered with other evidence, these inconsistencies support the presence of reasonable doubt in this case.

[85] Third, the time of day and the age of the child contribute to reasonable doubt in my view. There is an inconsistency in the evidence as to when the alleged assault occurred. According to the mother, A. went upstairs after dinner. According to A., he went up to see N.M.'s room before dinner. N.M. was not asked about whether it was before or after dinner. D.M. said he was upstairs before and after dinner. D.M. was not specifically asked, but the reasonable inference from his evidence is that whatever happened with A. occurred after dinner around 1 AM. Considering the mother's evidence and the evidence as a whole, the 1 AM timeframe appears to me to be the correct timing for whatever occurred but I will say that the matter is not free from doubt. Assuming the mother is correct about the timing, I understood from E.M. that it was common for the children to be up late. Having said that, any person up at 1 o'clock in the morning, including a 3 year old child, could well be tired and even sleepy. Could a 3 year old who is tired and perhaps even sleepy make an error and think that something happened that didn't happen? Could she, in that context, confuse the pulling up of her shorts by R.C. (at which time he says she flinched) with him touching her vagina? It will also be recalled that the mother's initial reaction was not to assume guilt on the part of R.C.. I recognize and appreciate that the mother, once she had time to talk privately to the child and had her husband speak to the child as well, apparently concluded that the child had been sexually assaulted. However, she was initially and understandably concerned that the child, given her young age, might be mistaken. It is not the most likely scenario in my view: that the child would think he touched her vagina when he didn't but it is reasonably possible that the child could have been tired and be mistaken.

[86] Fourth, the sexual assault which the Crown submits occurred has been given very little detail on the record before the Court. While this is somewhat understandable given the child's age, it is still a concern. What is it precisely that the defendant is alleged to have done? Is he alleged to have pulled the child's shorts and underwear down or reached into her shorts and underwear with his hand or hands? In the police statement, at no time is the child even asked the basic question as to whether the defendant touched the child under her underwear or on top of it. At trial, Crown counsel quite properly asked her this question and she said that he touched her underneath her underwear. However, the Court's concern is that this information came 16 months later when the child was clearly having memory problems. For example, the child was also asked at trial if she remembered telling police what happened to her and making a video and she said no, she did not remember that. Upon being shown the video, her memory was refreshed and she remembered giving her video statement. Further, on the video statement to police which was transcribed, it is 16 pages into an 18 page transcript before we learn that it is alleged that A. touched her with his hand and even then it is almost inaudible and difficult to understand when the child apparently says "this his hand inside (sic)" as she touches the outside of her shorts on top of her vagina. She did demonstrate earlier in her statement what had happened by putting her hand on the outside of her shorts in the area of her vagina. I will not go further on this point other than to summarize that the evidence, particularly the statement to police, is vague as to precisely what happened and how it is that the defendant is alleged to have touched the child. This makes it more difficult to make a finding of guilt because the Court does not know exactly what it is R.C. is alleged to have done and how.

[87] Fifth, common sense and human experience informs the Court that people do risky things. Nevertheless, the particular circumstances of this case contribute to reasonable doubt. Here, it is alleged that the defendant was in the child's room for only 5 to 10 minutes. The child's bedroom door is open and her brother is in his room with his door open only steps away and in circumstances where the brother has just come in N.M.'s room at least once only moments before to the knowledge of R.C.. The parents of N.M. are downstairs with the child's grandparents and other adults. It is in this context that R.C. is alleged to have touched the vagina of a 3 year old. To say that if this happened, it would be an extremely risky thing to have done is an understatement. I give limited weight to this argument given my view that people do extremely risky things but these circumstances do give some limited support to reasonable doubt in this case.

[88] Let me address some of the points made by the Crown. The Crown submits that R.C.'s version of events must be untrue and makes a number of points in support of that position. One of the key points the Crown makes is that when R.M., the child's father, telephoned R.C. shortly after he had left the home, R.C. denied that any wrongdoing had occurred and offered to come over to their home to discuss it. In speaking with the father at this time, R.C. did not put forward the scenario he laid out for police namely that the child had pulled her pants or shorts down to show R.C. her princess underwear. When asked by the police as to why he had not done this, R.C. gave various answers. He initially said "I should but again I know she's going to get in trouble-she's going to get spanked right". Clearly this answer is nonsensical and can't be true. A man accused of the sexual assault of a child does not stay silent because he is afraid the child will be spanked. However, this was not the full measure of what he said to police as to why he didn't explain to the father what had happened at that point in time. He also said "I just wake up. I was in shock what he was telling me. You know what I mean I like I'm thinking oh my god like this is serious stuff right." This is a more understandable reaction in my view.

[89] Let me summarize on this point concerning the conversation with R.M. as follows. I think the defendant's responses to R.M. undermine his version of events but not completely and unequivocally. R.M. did not testify and so we do not have the full conversation. We have snippets of the conversation from R.C.'s statement to the police. It is agreed between the Crown and the defence that R.C. denied any wrongdoing and that he offered to come over to their house that night to discuss it with the parents but they did not want him to come. Further, he texted the father the next day in an apparent attempt to speak to him about the matter. While it would have been more sensible and consistent with his story if he had explained right away about the child having pulled her pants down to show him her princess underwear, the manner in which she did respond (a bare denial followed by an offer to come over to discuss it) is not off the spectrum of the reasonable responses of how an innocent person might react in the circumstances.

[90] The Crown also submits that apart from the R.M. conversation, R.C. failed to tell the parents about the princess underwear incident right after it occurred and that this too was an unreasonable way in which to act and supports the Crown's theory that there was no princess underwear incident with the child. R.C.'s explanation for not having done so was because he did not want to get the child in trouble. Given that there had been no allegation of wrongdoing against him at that time, this was not an unreasonable approach to take and does not necessarily point to guilt.

[91] The Crown also submits that R.C.'s attempts to paint a picture of frenetic activity at the time of the alleged sexual assault so as to make it more unlikely that he could have committed the offence, is actually evidence of R.C.'s guilt. It is true that in his statement to police he implies that there would be little opportunity for him to have committed the sexual assault: he suggests that D.M. is "in and out, in and out, in and out" of N.M.'s room; that N.M. "was here she was over there. She was moving on the bed, like in the room". He also has N.M. closing the door at some point and taking things out of her drawer. This is to be contrasted with D.M.'s evidence who said it very quiet and that he looked in the room and saw N.M. and R.C. both lying on the bed watching television. On the other hand, a fair view of the matter is that there is some support for R.C.'s suggestion that there was, or could have been, a fair amount of activity and a limited opportunity to commit the offence. A.'s description of N.M. moving around the room doing various things is consistent with common experience as to how a child of that age behaves. D.M. was not looking in the room the whole time so his evidence does not necessarily undermine this point by the defendant. Further, D.M. acknowledged that there was sound from his Minecraft computer game and from N.M.'s television. Accordingly, common sense suggests that he might not hear all the activity that R.C. says was going on. D.M. agrees that he went into N.M.'s room when A. was there with her although it is implied in his evidence that he was only in N.M.'s room once which contrasts with A.'s statement that he was in multiple times. According to A., he sees D.M. come in the room which supports to some degree the concept of a limited opportunity to commit the offence. Also, D.M. says that R.C. came in his room after he was in N.M.'s room and this reduces the time that R.C. spent in N.M.'s room. On any view of the case, he is only upstairs for 5 to 10 minutes which gives a limited time to commit the offences (although of course they could have been committed within that time). The bottom line is that there is no clear evidence to lead the Court to conclude that R.C. is lying when he describes the level of activity in N.M.'s room. Even if he exaggerated or misstated the level of activity so as to try to persuade the police that he was innocent, this does not mean he is guilty.

[92] The Crown makes the point that D.M.'s evidence was that he saw R.C. and his sister lying on the bed watching TV when he looked in. R.C. says in his statement to the police that he was sitting on the bed with his feet on the floor. Accordingly, the argument can be made that R.C. is lying to hide the fact that he did have the opportunity to, and did, commit the offence. On the other hand, N.M.'s evidence suggests that they were sitting on the bed and this is consistent with R.C.'s evidence. Even assuming that D.M. was correct when he says they were lying on the bed it does not, even in the context of the other evidence, prove beyond a reasonable doubt that the charges are made out against R.C..

Conclusion

[93] Let me briefly summarize as follows. This is a difficult case and one where the Court has serious suspicions and concerns about the conduct of R.C.. N.M. gave credible evidence that she was sexually assaulted by R.C.. Her brother gave credible evidence as did her mother but neither of them witnessed the alleged assault and their evidence provides only limited support for the Crown's case. R.C. denied the allegations and gave a different version of events which has some support in the evidence. There were some reliability concerns that I had with N.M.'s evidence notwithstanding that I found her credible. For the detailed reasons set out above and based on my consideration of the evidence as a whole, I consider that there is a reasonable doubt as to the guilt of the accused. Accordingly, there will be an acquittal on both charges.

Released: July 4, 2016

Justice Paul F. Monahan