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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 26, 2016

Court File No.: Halton 124/15

Between:

Her Majesty the Queen

— and —

A.R.

Before: Justice David A. Harris

Heard on: April 18 and 19, 2016

Reasons for Judgment released: July 26, 2016

Counsel:

• L. Bandini, counsel for the Crown
• S. Hebscher, counsel for the accused A.R.

HARRIS J.:

Introduction

[1] A-R (hereinafter referred to as A-R or as father) has been charged with (1) invitation to sexual touching, (2) sexual assault, (3) sexual interference, all between July 10, 2014 and December 23, 2014 with respect to his daughter M.A.

[2] Crown counsel elected to proceed summarily.

[3] A-R pled not guilty and a trial was held.

[4] M.A. and her mother A.C.A. (hereinafter referred to as mother) testified as Crown witnesses. No witnesses testified for the defence.

[5] The issues facing me are the credibility of M.A. and whether I am satisfied that the Crown has proven A-R guilty beyond a reasonable doubt.

Standard of Proof

[6] I will start by stating that the principles in R. v. W (D) do not apply in this case. Having said that I am mindful of the fact that if, after considering all of the evidence that I accept in this case, I have a reasonable doubt as to A-R's guilt, I must acquit him.

[7] A-R, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".

[8] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted".

The Allegations

[9] M.A. testified that, when she was six years old, her father kissed her and touched her vagina with his finger. He inserted his finger inside her vagina. In addition, he exposed his penis to her and she touched it and held it in her hand which she moved up and down. These events occurred on about five occasions. There is no issue that if I believe M.A. to the requisite degree, then I should find A-R guilty of the offences with which he is charged.

[10] Counsel for A-R argued that M.A. was not a credible witness and that I should not believe her. I should certainly not be satisfied beyond a reasonable doubt that A-R is guilty.

[11] Counsel advanced no arguments with respect to her reliability. Despite this, I note the differences between credibility and reliability and I will address both in these reasons for judgment.

Credibility vs. Reliability

[12] Credibility relates to a witness's sincerity, whether she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of her testimony. In determining this, I must consider her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.

[13] Finlayson J.A. stated in R. v. Stewart that:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

Analysis of Credibility

Previous Lies

[14] Counsel argued that M.A. was not a credible witness for a number of reasons. These were:

1. M.A. lied on a number of other occasions; and
2. her evidence was often internally inconsistent and inconsistent with her mother's evidence.

[15] I will deal with the previous lies first.

[16] M.A. clearly lied to her mother about a number of things. She also falsely accused her mother of hitting her.

[17] I cannot, however, infer from this that she always lies. Rather, I must consider the previous lies in context before determining what effect they have on my assessment of her credibility.

[18] Most of the lies to her mother consisted of her denying minor wrongdoings such as taking a cookie or chocolate when she was not supposed to or claiming to have brushed her teeth when she had not. These are very different from accusing someone else of doing something wrong that is of a serious nature. The false accusation against her mother certainly falls into this latter category.

[19] There are however three significant differences between the accusations against her mother and those against her father.

[20] The first difference is that she made the accusations against her mother to her mother. She did not repeat them to anyone else.

[21] The second reason is as follows.

[22] Her mother testified that when confronted about being untruthful, M.A. would always tell the truth and say that she was sorry for lying. She never persisted in maintaining a lie.

[23] In contrast to this, she maintained her accusations against her father throughout her initial disclosure to her mother, her video statement to Constable Clayton and her examination-in-chief at trial. Throughout all of that and then during cross-examination she was never confronted with a direct suggestion that she was lying when she said that her father had touched her vagina or that she had touched his penis. As a result, we do not know what she might have done if confronted by such a suggestion. What we do know is that she maintained the same consistent allegations throughout this process. As Crown counsel argued, that would be a remarkable feat for an eight-year-old child who was making false accusations against her father simply because she was angry at him.

[24] The third difference is that M.A. had a motive to lie with regard to her mother. She believed that her mother was responsible for her parents breaking up and she was angry at her mother for this. She made her allegations when angry and acting out.

[25] Counsel for A-R argued that M.A. was angry at her father too, but I disagree with this contention. Her mother may have blamed him in M.A.'s presence, but it was clear to me that M.A. did not believe this.

[26] She was not angry at her father. She clearly still loved him and wanted him to return home to live with her and her mother. Accusing him of touching her vagina would certainly not bring that about. Even more telling in this regard is the fact that M.A. first disclosed the alleged offences only a few days before Christmas when she and her mother were both excited by the prospect that A-R would be joining them over the holidays. Her disclosure of alleged sexual abuse brought that prospect to an immediate end.

[27] Further, M.A. appeared to have no idea initially that what she was accusing him of doing would get him in trouble. She appeared unaware that he might get into trouble because of what she said.

[28] That had definitely changed by the time that she spoke to Constable Clayton. Constable Clayton regularly assured M.A. throughout the interview that nobody was going to get into trouble, but M.A. clearly knew better. She told Constable Clayton that she knew that her father was in trouble. She did not know why, but her mother had told her that he was.

[29] The result was that she had to be coaxed into telling Constable Clayton what had happened. Initially she claimed to have forgotten what she had disclosed to her mother. Then when she did open up, she minimized her father's responsibility for what had happened. She said that she initiated the sexual acts with him. She asked him to do them. It did not hurt. He stopped when she told him to stop.

[30] I also note that she became angry at her mother yet again when her mother disclosed the allegations to her friend Patricia.

[31] Further, she had to again be coaxed into telling the Court about the personal details of what happened between her and her father. She clearly did not want to disclose what had happened. I took this to be partly due to reticence in discussing personal matters with strangers but it also showed an absence of any apparent desire to get her father in trouble.

[32] My conclusions in this regard were based not only on what M.A. said, but also on the manner in which she said it. In that regard, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".

[33] The absence of any desire to get her father in trouble was repeatedly corroborated by her mother. For example, during cross-examination, counsel suggested that during family court proceedings, mother had said that A-R would be going to jail. Her indignant response was:

Absolutely not. He was my husband. I did not want him to go to jail. I still don't want my child's father to be in jail. It would break her heart and mine.

[34] It was also corroborated by M.A.'s rejection of any suggestions by others that her father had done anything else to her. She rejected the suggestion by Constable Clayton that her father had ever taken a picture of what they were doing or of M.A.'s private parts. She rejected the suggestion by Crown counsel that her father had touched her vagina with any other part of his body other than his finger or that she had touched his penis with anything other than her hand. Mother testified that she asked M.A. if her father ever put his penis near her vagina and that M.A. "looked at me like I was crazy and said no".

[35] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.

[36] Before leaving the subject of M.A. telling lies, I wish to address an issue that will come up again later in these reasons. During his cross-examination of mother, counsel for A-R referred to her statement to Constable Clayton. He quoted from one particular passage several times. Once he read "in the last month and a half she started lying about almost everything". Then on another occasion he read "in the last month and a half she started lying about absolutely everything". On two other occasions he referred to the latter version of "absolutely everything".

[37] I refer to this now because whether she said "almost everything" or "absolutely everything" it is only one example of a tendency by mother to speak in absolute terms like "everything" or "all the time" when closer analysis shows that such absolute terms are not accurate. While some people regularly resort to understatement, mother does just the opposite. This becomes more important because counsel for A-R then seizes upon her overstatements and bases much of his arguments upon that unsound foundation. I will have more to say about this tendency of hers later.

Alleged Inconsistencies

[38] In the meantime, I will examine the alleged inconsistencies in the evidence of M.A.

[39] In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said in the witness box and what she said on previous occasions. It is also appropriate to examine inconsistencies with what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness, particularly a young witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.

[40] In this case, while examining any inconsistencies, I must also take into account M.A.'s age both at the time of the alleged offences (six years old) and when she testified (just days before her eighth birthday).

[41] Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate.

[42] It is improper to view the evidence of children as being inherently unreliable and therefore to be treated with special caution. The statutory requirement that a child's evidence be corroborated was repealed long ago. The repeal of these provisions does not prevent a judge from treating a child's evidence with caution where such caution is merited, but it does revoke the assumption that children's evidence is less reliable than the evidence of adults.

[43] Further, it may be wrong to apply adult tests for credibility to the evidence of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.

[44] It is necessary to take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as on adults. 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. 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.

[45] This is not to say that courts should not carefully assess the credibility of child witnesses or that the standard of proof should be lowered when dealing with children. The credibility of every witness must be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. Still, "Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child."

[46] In this case, a number of the alleged inconsistencies must be viewed in light of M.A.'s age and her perceptions as a child.

First Alleged Inconsistency: Communication with Mother

[47] For example, M.A. testified that she did not tell her mother everything that happened at school or in her life. She did not ask her about a lot of questions about life and about things.

[48] During cross-examination, her mother answered "yes" when asked "She was a curious child?" and "She asked a lot of questions?" and "She wanted to tell you about everything that was going on at school?" and "She wanted to tell you everything that was going on in her life?".

[49] Quite frankly, I would not be surprised by any two people differing in their subjective analyses of these questions. I am certainly not surprised by the different perspectives held by an eight-year-old girl and her mother. What one might consider to be "a lot" or "everything", another might view differently. This is especially true where one of the people, in this case the mother, appears to be rather quick to use or adopt absolute terms like "everything" or "absolutely everything" or "all the time". Accordingly, I do not attach much, if any, weight to this inconsistency.

Second Alleged Inconsistency: Knowledge of Private Parts

[50] With respect to the second alleged inconsistency, M.A. testified that she and her mother did not talk about private parts and she did not know anything about the difference between boys and girls until after she had disclosed the alleged offences.

[51] Her mother testified that M.A. did not know about "private parts", but she did know the difference between boys and girls and that they used the words "vagina" and "penis".

[52] Counsel cross-examined her at some length about her statement to Constable Clayton that M.A. was talking about that, referring to her body parts, "all the time". He made much about the use of those words "all of the time" both here and on at least one other occasion suggesting that these discussions were occurring very frequently. As I stated before, it was obvious to me, based on the repeated use of the phrase and the context in which it was used and on mother's viva voce evidence that this was a figure of speech commonly used by her and which ought not to be taken literally.

[53] Of more concern to me is the fact that the statement by M.A. that she did not know the difference between boys and girls prior to speaking to Constable Clayton is clearly at odds with her telling Constable Clayton about her father touching her vagina and her touching his penis. Clearly, she knew the difference between boys and girls. She was a girl and girls had vaginas and boobs. He was a boy and boys had penises. Her testimony that she did not know the difference between girls and boys was more than an inconsistency. It was clearly incorrect.

[54] There are two possible explanations for this. The first explanation is that M.A. was lying. The second is that she simply misspoke. I am satisfied that the second explanation is the correct one in light of her other consistent and candid statements acknowledging that she did, in fact, know the difference between boys and girls.

Third Alleged Inconsistency: Location of Touching

[55] With respect to the third alleged inconsistency, M.A. testified at trial that her father inserted his finger in her vagina. In her video statement, when asked where he touched her, she pointed to the area of her vagina and her breasts. She did this over her clothes. She told Constable Clayton that she could feel his finger inside her body. Her mother testified that when she asked M.A. where her father had touched her, she pulled down her pants and placed her finger on, but not in, her vagina.

[56] I do not find this to be a discrepancy. The fact that she did not insert her finger in her vagina when asked to show where her father had touched her does not in any way detract from her verbal statements that he had placed his finger inside her.

[57] I also note here that M.A. was not cross-examined at all with regard to her evidence on this point.

Fourth Alleged Inconsistency: Boy at School Talking About Sex

[58] With respect to the fourth alleged inconsistency, counsel argued that M.A. testified that she had not suffered from itchiness or redness around her private parts, whereas her mother had testified that she did suffer from this to such an extent that they had consulted a doctor. Again, it is important to examine what was actually said by both witnesses.

[59] M.A. was asked the following questions during cross-examination and gave the following answers:

Q. Do you remember a boy saying to you that he wanted to have sex with you?

A. No she didn't do that.

Q. She never did that. So you never had any problems where, where you're itchy?

A. No.

Q. And you never had to …

A. Only when, only when I had the chicken pox …

[60] They then continued on further discussing her experience with chicken pox before counsel asked, "And so there wasn't any other time when you needed cream to, because you're itchy or you had some redness?" and M.A. replied "Nope".

[61] Mother testified that M.A. did suffer from some irritation in the area of her vagina, but that they never applied any cream for this. The only advice from the doctor was that she should stop wearing underwear.

[62] I find no inconsistency between the evidence of M.A. and that of her mother. Clearly the focus in the answers given by M.A. was the use of a cream on her vagina. She said she had not used any cream. Her mother confirmed this. M.A. was not asked whether she did or did not wear underwear. She was not asked directly whether she did not wear underwear because of an irritation in the area of her vagina. Counsel asked this eight-year-old witness a multi-part question. She answered one part correctly. Counsel did not follow up with the other parts. So, as I said already, I find no inconsistency here.

[63] I also note that M.A. was asked if she had ever asked her mother to blow on her vagina to alleviate pain or stinging caused by any cream and she replied "no". The question was never put to her mother. Counsel made no reference to this in his submissions. Accordingly, I have concluded that this is not a factor that I need to consider.

[64] Her mother was asked if M.A. had ever taken her hand and placed it on M.A.'s vagina and that she had to tell M.A. not to do that. She replied "no". She was also asked if M.A. had ever asked her to tickle M.A.'s vagina and she again replied "no". Neither question was put to M.A. Again, counsel made no reference to this in his submissions and I have concluded that this too is not a factor that I need to consider.

Fifth Alleged Inconsistency: Itchiness and Redness

[65] With respect to the fifth alleged inconsistency, counsel argued that M.A. testified that she had not suffered from itchiness or redness around her private parts, whereas her mother had testified that she did suffer from this to such an extent that they had consulted a doctor. Again, it is important to examine what was actually said by both witnesses.

[66] M.A. was asked the following questions during cross-examination and gave the following answers:

Q. And I know this is, this might be a little embarrassing, but I want to ask you about, you know, when Mom would put cream on your vagina because you were itchy, do you remember that?

A. No she didn't do that.

Q. She never did that. So you never had any problems where, where you're itchy?

A. No.

Q. And you never had to …

A. Only when, only when I had the chicken pox …

[67] They then continued on further discussing her experience with chicken pox before counsel asked, "And so there wasn't any other time when you needed cream to, because you're itchy or you had some redness?" and M.A. replied "Nope".

[68] Mother testified that M.A. did suffer from some irritation in the area of her vagina, but that they never applied any cream for this. The only advice from the doctor was that she should stop wearing underwear.

[69] I find no inconsistency between the evidence of M.A. and that of her mother. Clearly the focus in the answers given by M.A. was the use of a cream on her vagina. She said she had not used any cream. Her mother confirmed this. M.A. was not asked whether she did or did not wear underwear. She was not asked directly whether she did not wear underwear because of an irritation in the area of her vagina. Counsel asked this eight-year-old witness a multi-part question. She answered one part correctly. Counsel did not follow up with the other parts. So, as I said already, I find no inconsistency here.

Sixth and Seventh Alleged Inconsistencies: Prior Contact with Father's Penis and Seeing Father Naked

[70] With respect to the sixth and seventh alleged inconsistencies, counsel argued that M.A. testified that she had never touched her father's penis prior to the alleged offence and that she had seen him naked on only one occasion, whereas her mother testified that M.A. had seen her father naked on a number of occasions and that she had touched his penis two or three times.

[71] M.A. was asked the following questions during cross-examination and gave the following answers:

Q. I think we also heard you say that, that you had once touched your dad's penis, right?

A. Right.

Q. And it was when he was coming out of the shower or going into the shower or something like that?

A. No.

Q. You don't remember that? Okay. Was there a moment that you might remember where your, your dad was naked and you touched his penis, you pinched it, and then mom told you not to do it again?

A. No.

Q. You sure about that?

A. Yeah.

[72] Subsequently, she was asked the following questions and gave the following answers:

Q. You've seen your mommy naked before?

A. Right. In the shower.

Q. Yeah. And your dad, other than these things you told us that happened with your dad, you've seen him naked?

A. No.

Q. Never saw him?

A. Not really.

Q. No?

A. No.

Q. You never had a …

A. Only if he comes out of the shower and I walk by him,

Q. Right, so that has happened?

A. Only one time.

Q. Okay, was that …

A. I walked by and then he came up so I quickly runned 'cause I didn't want to stare at him.

Q. Right and was that the time when you touched his penis?

A. No.

Q. Was that the time when mom said to you "you can't do that"?

A. No.

Q. You, that never happened, is that what you're saying?

A. That was like the time when we lived with him, I walked by and he was naked.

Q. Right.

A. Then I walked quicker.

Q. Right, you didn't want to see anything, right?

A. Right.

Q. You didn't want to embarrass him?

A. Right.

Q. Okay but was there ever a time when mom said to you 'cause you – that you touched dad's penis and mom said "Don't do that again, you're not supposed to do that?" Do you …

A. No

Q. … remember that? Okay, that never happened?

A. Nope, never happened.

[73] Mother testified that there were times when he would be naked in M.A.'s presence mainly in the bathroom because they had just one bathroom on the upper level and they did not really ever have the bathroom door closed.

[74] M.A. touched his penis a couple of times. He told her to tell M.A. not to, but mother did not do this. She saw this to be natural curiosity on the part of a young child. This occurred maybe two or three times when M.A. was maybe three or four years old.

[75] During cross-examination she rejected suggestions that M.A. "poked" her father's penis or "grabbed" it. She "touched it with her finger". Mother did not tell her not to do that.

[76] Quite frankly, the above exchanges highlight the importance of asking specific questions of any witness, but especially a child witness. In one question above, counsel asked, "Was there a moment that you might remember where your, your dad was naked and you touched his penis, you pinched it, and then mom told you not to do it again?" M.A. replied "no". There was no follow-up question to allow me to determine which part or parts of the question she disagreed with. She had already agreed only two questions earlier that she had touched her father's penis. She could, however, have been denying that she pinched it. She could also have been denying that her mother told her not to do that again.

[77] Mother agreed that M.A. had merely touched her father's penis. She had not poked it or grabbed it. Mother was not asked if M.A. had pinched it.

[78] Mother also agreed that she had not told M.A. not to do that again.

[79] The only inconsistency between the two of them was that M.A. said that it happened once and mother said that it happened two or three times. In that regard, I do not know which one of them is correct. I do know that it is not much of an inconsistency where, as here, one witness is an eight year old trying to remember precisely what happened four or five years earlier. I am satisfied that she should not be expected to have attached much if any importance to whether she touched her father's penis once or twice or three times in total. Accordingly, I am attaching no weight to this inconsistency.

[80] Similarly, I attach little or no weight to the fact that M.A. said that she saw her father naked once whereas her mother said that he would have been naked in her presence more often than that. I again note that I do not know who was correct. I also note that mother testified in general rather than specific terms. She was assuming that M.A. had seen her father naked because he had been naked in her presence. She made no mention of any specific incident where it was obvious that M.A. had actually taken note of the fact. Finally, I again am satisfied that M.A. should not be expected to have attached much if any importance to whether she saw her father naked once or more than once.

[81] During cross-examination, mother was asked if M.A. ever asked her anything like, "Is it chocolate or is it vanilla?" in reference to her father's penis. She replied "no". This question was not put to M.A. Again, counsel made no reference to this in his submissions and I have concluded that this too is not a factor that I need to consider.

Eighth Alleged Inconsistency: Social Worker at School

[82] With respect to the eighth alleged inconsistency, counsel argued that mother testified that she had arranged for M.A. to see a social worker at school about her acting out, hitting her and accusing her of hitting M.A., but M.A. testified that this had not happened.

[83] Again, it is necessary to look at exactly what was said. M.A. was asked the following questions and gave the following answers.

Q. Do you ever go to the doctor and talk to the doctor about anything about what was going on at home …

A. No.

Q. … with mom and dad.

A. No.

Q. Did you talk to a woman at school about what was going on at home?

A. No.

Q. You're sure about that?

A. Yes.

Q. Is it possible you were angry and your mom wanted you to talk to someone at school and so she wanted to let you talk to someone?

A. No.

Q. And that person maybe told you that it wasn't your fault and that you were angry at your parents and that's why …

A. No.

Q. … you were – no, okay. [M. A.], I want to thank you for your patience. I'm finished asking you questions and I'm going to say goodbye now.

[84] The questions put to M.A. were too general in nature for me to find that her answers were inconsistent with her mother's evidence. The only time that a question became at all specific, it referred to "talking about what was going on at home with mom and dad". Talking to "a lady at school" about "what was going on at home with mom and dad" is not necessarily the same as talking to a social worker about M.A. hitting her mother and telling lies. Even the suggestion that "that person maybe told you that it wasn't your fault and that you were angry at your parents" does not go far enough to identify what counsel was asking about to such a degree that I would find the answers of this eight year old to be inconsistent with those of her mother.

Ninth Alleged Inconsistency: Accusations Against Mother

[85] It was suggested that a further inconsistency occurred when M.A. denied having made accusations to her mother that her mother was hitting her. However, I note that the questions put to her in this regard were worded in an unclear manner. The questions and answers were as follows.

Q. Do you remember your mom, do you remember your mom would tell you that you were accusing her of hitting her when you didn't hit her?

A. No.

Q. That never happened?

A. Yes.

Q. You're sure of that?

A. Yes.

[86] The first question is clearly confusing. It asks if M.A. remembers her mother telling M.A. that M.A. was accusing mother of hitting mother when M.A. did not hit mother. Anyone might be confused by that. I would hope that an adult might acknowledge confusion and ask for clarification. I would not hold a child to that same standard. I also am not prepared to speculate as to what M.A. thought that she was being asked here.

Tenth Alleged Inconsistency: Father's Penis Being Soft

[87] Counsel also argued that M.A.'s statement that her father's penis was soft made no sense. What was the point in sexual touching if he was not sexually aroused by it?

[88] There are two flaws in this argument. The first one is that nobody asked any further questions to clarify whether M.A. meant soft like skin as opposed to hard like something like plastic or soft as in flaccid as opposed to hard like an erection. The second flaw is that I do not know what might motivate any particular individual to sexually touch a child.

Eleventh Alleged Inconsistency: Movies

[89] The final alleged inconsistency involved two movies. The first movie was one which M.A. and her mother were watching when M.A. disclosed her allegations regarding her father. The second movie was one that she referred to in the course of that disclosure.

[90] Mother testified that she and M.A. were watching a Hallmark Christmas movie together. At one point in the movie a man kissed a woman. Both of them were clothed and not in bed. At that point M.A. said something like, "Now they're naked under the sheets" and "Now they're going to touch their private parts under the sheets".

[91] This led to a discussion between M.A. and her mother which culminated in the disclosure that M.A.'s father had touched her vagina on a number of occasions and that M.A. had touched his penis. M.A. also referred to watching another movie with both her mother and her father prior to the commencement of this touching. Mother testified that this had never happened. The three of them had never watched a movie in which people were naked or touching each other's private parts. Mother and A-R had never watched such a movie together either. They never watched a movie that would teach a child about someone touching her vagina.

[92] M.A. testified during examination in-Chief that she did not like watching movies where people were kissing,

[93] During cross-examination she said that she did not remember watching a movie at the time that she disclosed the touching to her mother.

[94] Later in her cross-examination, she did remember watching a movie in which the people were kissing, but they were not doing anything under the blankets.

[95] She also remembered watching another movie one time with her mother and father and in that movie there was something going on under the blankets. That had nothing to do with what she told her mother about her father touching her vagina.

[96] Clearly there are a number of inconsistencies in all of this.

[97] M.A. said that the three of them watched a movie together. Mother said that they did not. In this instance, I believed mother. Parents do not usually watch sexually explicit films together with their six-year-old children. I heard no evidence to support the possibility that this family was the exception to that. In addition, I noted not only what mother said in this regard, but also how she said it. Finally, the evidence of M.A. about the movie and the circumstances surrounding the family watching it was so vague as to be unconvincing.

[98] As to why M.A. would make up such a story, I note that it is again consistent with an attempt to divert responsibility for what happened away from her father.

[99] There was also one further inconsistency which was not argued by counsel. M.A testified that her mother told her that it was her father's fault that he had moved out. Her mother testified that she never told M.A. that. One of them was clearly wrong. In that regard, I believed M.A. This is the sort of thing a parent might well say in the heat of the moment when faced with repeated accusations screamed at her by her daughter that it was all her fault. It is also the sort of thing that a parent might well prefer to forget having happened once the situation had cooled.

Evidence Supporting the Crown's Position

[100] I will now address those elements of the case which purportedly bolster the Crown's position.

[101] Crown counsel argued that M.A. had accurately described a penis during her statement to Constable Clayton and in her evidence at trial. I do not consider that fact to be particularly probative of anything, however, in light of the fact that M.A. had seen her father's penis at least once under innocent circumstances.

[102] Crown counsel also argued that M.A. had described herself performing an act consistent with masturbating her father.

[103] She certainly did this during her initial disclosure to her mother, actually moving her hand to demonstrate what she had done. This, however, is not evidence before me and I am giving it no weight.

[104] During her video interview with Constable Clayton, she described his penis. She said you could move it up and down. She said that she did that. She did not squeeze the penis because she did not want to hurt her father. He never told her what to do with his penis. Nothing came out of the end of it.

[105] This is evidence which demonstrates knowledge by her of a sexual act and I will say more about that shortly.

[106] She did not give any evidence with respect to this during the trial. Neither counsel asked any questions about it.

[107] Crown counsel also argued that her evidence about her father peeing on the carpet in the basement was consistent with ejaculation. I agree. However, I also find it to be consistent with him urinating on the carpet. Both acts would be highly (and pretty much equally) unusual. Further, I note M.A.'s evidence that nothing came out of her father's penis while they were touching each other. In the end, I might be suspicious about whether he ejaculated following one of his sessions with M.A., but I am not certain enough that I would attach any weight to this in my deliberations.

Knowledge of Sexual Acts

[108] I made reference above to M.A.'s knowledge of sexual acts. Both counsel agreed that it was unlikely that a six-year-old child would ordinarily have knowledge of sex acts such as those alleged here.

[109] Counsel for A-R argued that A.M.'s knowledge had come either from the boy who was talking about sex all the time at school or from watching a movie. I disagree with both suggestions for the following reasons.

[110] With respect to the first suggestion, I will repeat what I wrote earlier.

[111] There was no evidence before me to support counsel's argument that there had been a boy at M.A.'s school who talked about sex all of the time. Mother did not adopt her statement to police. Further, it was clearly hearsay as she was not personally present to hear any such talk.

[112] In addition, even if I accepted the suggestion that such a boy existed, I have no way of knowing with any precision what might be meant by either "talked about sex" or "all of the time".

[113] Finally, I note that counsel cross-examined mother at some length about this, but she could not tell us what was said to M.A. or what was in M.A.'s head when she touched her father.

[114] Only M.A. could have told us what she knew and where she learned that. However, her cross-examination in that regard was extremely brief.

[115] She was asked, "Do you remember a boy saying to you that he wanted to have sex with you?" She answered "no".

[116] She also answered "no" when asked if any of the boys had told her that he wanted to kiss her. When asked what the boys usually talked to her about, she replied "school".

[117] Later on, when asked, "Maybe it was someone at school or someone else that, that taught you that?" in relation to where she got the idea to touch her father's penis, M.A. again replied "no".

[118] So there was no evidentiary basis for counsel's suggestion that M.A. learned about sex from a boy at school. In fact, the only evidence was that she did not.

[119] With respect to the suggestion that she learned about sex from a movie, that theory too is flawed for a number of reasons. The primary one is that I accepted mother's evidence that the three of them had never watched such a movie together. M.A. never suggested that she had seen a movie elsewhere and there was no other evidence supporting that possibility. Mother testified that there was no other opportunity for M.A. to have seen such a movie.

[120] I also note that, based on all of her answers both during her video and in court, M.A.'s knowledge of sex seemed to be limited to people kissing and touching each other's private parts with their hands. I heard no evidence as to the existence of any movie in which those activities stand out. On the other hand, it is exactly what M.A. said happened with her.

[121] All of that leaves the strong inference that M.A. was describing something that had actually happened to her.

The "Seduction" Claim

[122] This leads, however, to one aspect of M.A.'s evidence which I found to be problematic. That was when she stated that it was her idea to touch her father and to have him touch her.

[123] It is possible that this statement was true. If so, it would not provide a legal defence to the charges against A-R.

[124] In light of M.A.'s ignorance about sex, however, this statement makes no sense. I simply do not believe that a sexually naïve six year old seduced her father into penetrating her vagina with his finger while kissing.

[125] Counsel for A-R argued that this should leave me with a reasonable doubt. Crown counsel argued to the contrary.

[126] I am satisfied that M.A. may have believed what she said. She may have believed it because such a belief might allow her to continue loving her father. He had only done what she had asked him to do. To believe that he had taken advantage of her and sexually abused her could take that away. In that regard, her evidence would be credible but not reliable.

[127] Another perfectly rational explanation is that she lied in order to downplay his responsibility for what happened. As I have noted before, this would be consistent with her behaviour throughout these proceedings.

Corroborating Evidence

[128] That leaves us with those instances where mother corroborated the evidence given by M.A. As I stated earlier, the statutory requirement that a child's evidence be corroborated was repealed long ago. The repeal of these provisions does not prevent a judge from treating a child's evidence with caution where such caution is merited. Neither does it preclude me from taking into account corroborating evidence, just as I might with an adult witness.

[129] There were several such instances where M.A.'s evidence was corroborated by her mother.

[130] M.A. testified that the touching occurred when she and her father were alone, either in her bedroom or in the basement. Mother testified that there were indeed times when M.A. and her father were alone together in both locations, while the mother was elsewhere in the house, in circumstances consistent with those described by M.A.

[131] They both testified about M.A. spending a week with her grandmother during that time.

[132] They both testified about A-R staying overnight at their house when there was a big snowstorm. M.A. testified that this was the last time that her father touched her. Her mother testified that this was the last time that he had stayed overnight at their house.

[133] Mother testified that M.A. had a double bed. M.A. told Constable Clayton that it was king-sized, an understandable perception for a six year old.

[134] They both testified that, although A-R had moved out of their house, prior to the allegations he was still their husband/father respectively and that he continued to come to visit them.

[135] They both testified that they were excited by the prospect that A-R would be joining them over Christmas. As I noted earlier, M.A. first disclosed the alleged offences only a few days before Christmas.

[136] They both testified that M.A.'s father had never bathed her.

[137] They both testified that he had never hit M.A. and that M.A. never accused him of hitting her and that M.A. had never hit him.

[138] They both testified that mother never told M.A. that her father had a girlfriend.

[139] They both testified consistently about M.A. having had chicken-pox.

[140] During cross-examination, M.A. was asked if there was a bucket in the basement that her father peed in. She replied "no". This question was not put to her mother and again, counsel made no reference to this in his submissions and I have concluded that this too is not a factor that I need to consider, subject to the following.

[141] M.A.'s full answer was:

No, 'cause, 'cause there's no bucket that you can pee in 'cause we only have one bucket and the bucket has like the mop and this and that. But like if he knows he needs to go, he needs to go up one flights of stairs and the other flight of stairs 'cause we only have a bathroom on the top floor and he's way in the basement.

[142] I note this because it shows the high degree of situational awareness possessed by this young girl with respect to what her father would have had to do if he needed to urinate while he was in the basement. I also note that mother also testified that there was only one bathroom in the house and that it was on the uppermost floor.

Conclusion

[143] In conclusion, I must stress that I have taken all of the above factors into account in deciding this case. I have considered all of the evidence in its totality and not considered any one factor in isolation. Having done that, I am satisfied that M.A. is both a credible and a reliable witness. I am satisfied that the Crown has proven beyond a reasonable doubt that A-R committed all of the offences with which he has been charged and I find him guilty of those offences.

Released: July 26, 2016

Signed: "Justice David A. Harris"

Footnotes

[1] On consent, M.A. testified via closed circuit television and was accompanied by a support person. A prior video statement was introduced into evidence pursuant to section 715.1 of the Criminal Code.

[2] R. v. W. (D), [1991] S.C.J. No. 26 (S.C.C.).

[3] R. v. B.D., 2011 ONCA 51, [2011] O.J. No. 198 (Ont. C.A.) per Blair J.A. at para 114; R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (Ont.C.A.) at para 37.

[4] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.

[5] R. v Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para. 13.

[6] R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.) per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont. C.A.) per Watt J.A. at para. 41; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at pp. 32-33.

[7] R. v. J.J.R.D., [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para 47; R. v. J.W., 2014 ONCA, [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26.

[8] R. v. Stewart, [1994] O.J. No. 811 (Ont.C.A.) per Finlayson J.A. at para. 19.

[9] R. v. Norman, [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart, supra at para. 19; R. v. G.G., [1997] O.J. No. 1501 (Ont.C.A.) per Finlayson J.A. at paras. 14-19; R. v. Gostick, [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15-17; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1 (Ont.C.A.) per Doherty J.A. at para 66.

[10] R. v. Stewart, supra at para. 27; R. v. M.G., [1994] O.J. No. 2086 (Ont. C.A.) per Galligan J.A. at para. 23; R. v. Gostick, supra at para. 14.

[11] R. v. Jackson, 1995 ONCA, [1995] O.J. No. 2471 (Ont.C.A.) at para. 5.

[12] R. v. R.W.B., 1993 BCCA, [1993] B.C.J. No. 758 (B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (Ont. C.A.) at paras. 12-13.

[13] R. v. Czibulka, [2004] O.J. No. 3723 (Ont. C.A.) per Rosenberg J.A. at para. 44; R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029 (Ont. C.A.) per Simmons J.A. at para 44; R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210 (Ont.C.A.) per Cronk J.A. at para 107.

[14] For example, at one point during her evidence, mother stated that M.A was not lying all of the time.

[15] R. v. R.W.B., 1993 BCCA, [1993] B.C.J. No. 758 (B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (Ont. C.A.) at paras. 12-13.

[16] R. v. W.(R.), [1992] S.C.J. No. 56 (S.C.C.) per McLachlin J. (as she then was) at para 26; R. v. A.M., supra at para. 9.

[17] R. v. W.(R.), supra at para 23.

[18] R. v. W.(R.), supra at para 24.

[19] R. v. B. (G.), [1990] S.C.J. No. 58 (S.C.C.) per Wilson J. at para. 48; R. v. W.(R.), supra at para. 24.

[20] R. v. B. (G.), supra at para. 48; R. v. W.(R.), supra at para 24.

[21] R. v. W.(R.), supra at para 25.