WARNING

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

This hearing is governed by sections 486.4 and 486.6 of the Criminal Code and sections 110(1), 111(1) and 138(1) of the Youth Criminal Justice Act. These sections read as follows:

Criminal Code, R.S.C. 1985, c. C-46

Section 486.4

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Section 486.6

(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.

Youth Criminal Justice Act, S.C. 2002, c. 1

Section 110

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 111

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published)...

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

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

Court Information

Date: 2016-09-22

Court File No.: Brampton 14Y1305

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

C.L.

Before: Justice P.A. Schreck

Heard on: August 22-26, 2016

Counsel

E. Norman — counsel for the Crown

C.M. Hogan — counsel for the applicant

REASONS FOR JUDGMENT

SCHRECK J.:

[1] C.L., a young person, is charged with having committed the offences of sexual interference, invitation to sexual touching and sexual assault between November 1 and December 31, 2014. The complainant, also a young person, testified that C.L. forced him to perform oral sex on him. C.L. denies this. As is often the situation with allegations of this nature, the case turns primarily on the assessment of the credibility of the witnesses.

I. EVIDENCE

A. The Case for the Crown

(i) The Alleged Offences

(a) Overview

[2] During the time frame of the allegations, C.L. was 14 years old. He lived with his parents, his older sister, M.L., his younger brother, G.L. and a younger sister.

[3] The complainant, J.P., was nine years old at the relevant time. He lived with his mother and his younger brother. His mother worked during the day, so every day after school he would go to C.L.'s house and remain there until his mother came to get him at around 6:00 p.m. As well, J.P. and C.L.'s younger brother, G.L., were friends and J.P. would sometimes sleep over at the L. home on weekends. The two families had known each other for a long time.

[4] J.P. alleges that on several occasions while at the L. home in November and December 2014, C.L. would expose his penis and make him lick it. J.P. testified that this happened "about 13 times", but could only recall the specifics of three incidents. According to J.P., on one occasion, M.L., C.L.'s older sister, saw him go into C.L.'s room with C.L. He could not say which incident this was. M.L. did not testify.

(b) The "Sleepover Incident"

[5] Although his evidence was not altogether clear, it appears that the first incident occurred on a weekend while J.P. was sleeping over with G.L. C.L. and G.L. shared a bedroom, but when J.P. slept over he and G.L. would sleep in the living room. J.P. testified that on this occasion, he was awoken by somebody. It was dark and he could see little, as the only light came from a room on the second floor. He saw a penis in front of him, but could not see whose it was. He then heard a person whisper the words "lick it". He did not recognize the person's voice. J.P. did not lick the penis and told the person to go back to bed. He testified that after this incident, he was unsure whether he had dreamt it, so he did not tell anybody about it. I will refer to this as the "sleepover incident".

[6] J.P. testified that he realized that he had not dreamt the incident when it happened a second time. He could not recall any details of the second incident, except that it happened in C.L.'s bedroom and that C.L. had asked him to lick his penis.

(c) The "Red Controller Incident"

[7] J.P. also described an incident that occurred when he, C.L. and G.L. had decided to play a video game called "Black Ops 3" on a Playstation unit. The game unit was in C.L. and G.L.'s parents' bedroom. J.L. testified that there were two video game controllers in the bedroom, but C.L. and G.L. wanted to also use a third controller, which was red. C.L. said that he thought that the red controller was in his room and went to look for it. He told J.P. to accompany him. G.L. remained in the parents' bedroom to look for the controller there. C.L.'s mother was downstairs.

[8] According to J.P., once they were in C.L.'s bedroom C.L. closed the door and they both sat on the bed. C.L. then took off his pants and underwear, but not his shirt, and told J.P. to lick his penis. J.P. complied and licked it for about five seconds. He and C.L. spent about 15 minutes in the bedroom. J.P. could not recall what was said between them other than the instruction to "lick it". I will refer to this as the "red controller incident".

[9] At a couple of points in his testimony, J.P. said that the red controller incident was the first time he was asked to lick C.L.'s penis. Later, however, he said that the sleepover incident had been the first.

(d) The "Karate Incident"

[10] J.P. described another incident that occurred when C.L.'s father was preparing to take C.L. and G.L. to their karate lesson. C.L. asked J.P. to come to his room while he changed into his karate uniform, known as a "gi". While changing into the gi, C.L. took off his pants and underwear and told J.P. to lick his penis. J.P. initially said no, but then complied because C.L. was strong and had an orange belt in karate and J.P. did not want to fight with him. I will refer to this as the "karate incident".

(ii) The Disclosure of the Allegations

(a) The Initial Non-Disclosure

[11] J.P. testified that he did not tell anybody about what was happening because he was afraid that C.L. would hurt him as C.L. had an orange belt in karate. He acknowledged, however, that C.L. had never threatened to harm him.

[12] Although his evidence on this point was not entirely clear, it appears that another reason J.P. did not disclose the allegations related to a paper airplane. J.P. testified that a friend of his had left a paper airplane at school. To prevent the janitor from sweeping it up, J.P. took it home. C.L. learned of this and threatened to tell people that J.P. had stolen the paper airplane.

[13] The first person J.P. told about the allegations was his paternal grandmother, A.C. I heard different versions as to how this disclosure occurred.

(b) The Complainant's Account

[14] According to J.P., one day his grandmother picked him up from C.L.'s house after school. This was very unusual as his mother ordinarily picked him up. J.P. had not been told that his grandmother would pick him up that day.

[15] J.P.'s grandmother began to drive towards her house. On the way, she specifically asked J.P. whether C.L. was doing anything to him. J.P. did not know why she asked this as he had not previously told anybody about what was happening. J.P. replied that C.L. was making him lick his "private parts", at which point his grandmother slammed on the brakes. J.P. recalled that this conversation happened while they were driving by a Walmart store at Erin Mills Parkway and Burnhamthorpe Road.

(c) The Grandmother's Account

[16] The grandmother, A.C., gave a different description of the circumstances in which J.P. disclosed his allegations. J.P. and his younger brother would spend every second weekend with A.C. and their father, who lived with her. On one of these visits on a Saturday evening, A.C. asked J.P. "how are things?", a question she frequently asked him. On this occasion, J.P. replied by telling her that C.L. was making him put his "privates" into his mouth, which made him gag and feel like throwing up. He told her that he did not want to do this anymore.

[17] A.C. testified that she told J.P.'s mother, N.P., about the allegations the following day, which was a Sunday. She believed that N.P. called the police right away. This was not the case. It was A.C.'s understanding that J.P. never returned to C.L.'s home after that.

[18] In cross-examination, A.C. agreed that she had told the police that prior to J.P.'s disclosure, she had been concerned because she had noticed that J.P.'s anal area had been "beet red". She testified that it was specifically his anus, and not his buttocks, that were red. The first time she noticed was when J.P. was taking a bath and she brought a towel to him. Although J.P. was seated in the bathtub, A.C. was nonetheless able to see his anal region and notice that it was very red. She noticed the same thing on his next visit two weeks later and the visit after that. It was on this last visit that J.P. disclosed his allegations against C.L.

[19] A.C. testified that the redness in J.P.'s anal area caused her to conclude that "something is happening". She asked J.P. about the redness, but it seemed as if he did not want to answer. A.C. mentioned the redness to her daughter, but did not mention it to J.P.'s mother. A.C. maintained, however, that the redness was not why she asked J.P. the question that resulted in the disclosure of the allegations. She explained that she always asked him how things were.

[20] A.C. testified that she had picked J.P. up from the L. household once or twice, but could not recall when that was.

[21] In cross-examination, A.C. acknowledged that she was of the view that there was "something strange" and "something a little off" about C.L. When asked to explain why she held this view, she said that he was reclusive and not social.

(d) The Mother's Account

[22] J.P.'s mother, N.P., testified that she first learned of the allegations from A.C. at some time in November or December. Although she could not recall the date, she specifically recalled that it was a Monday and that she spoke to A.C. upon her arrival home from work. A.C. had picked J.P. up from the L. home, which was unusual. It was N.P.'s understanding that A.C. had picked J.P. up because she wanted to speak to N.P. about something, presumably the allegations. She had not known in advance that A.C. was going to do this.

[23] According to N.P., A.C. told her that "J.P. had said something about being touched". She could not recall many details about the conversation. Because J.P. did not usually tell his mother things, N.P. called her sister and asked her to come over and speak to J.P. Her sister did so and then advised N.P. of what J.P. had said.

[24] Later that day, N.P. went to C.L.'s home to speak to his parents. C.L. was not present. Although N.P. advised them of J.P.'s allegations, she could not recall exactly what she said. They asked her to bring J.P. over so that they could "get to the bottom of it". She agreed and went home to get him.

(iii) The Meeting

[25] N.P. returned to the L. home with J.P. By then, C.L. had arrived home. N.P., J.P., C.L. and C.L.'s parents then had a discussion in the living room.

[26] J.P. recalled being at the meeting, but could not remember many details. He remembered being asked what had happened and whether he wanted to send C.L. to jail or to a psychiatrist. He opted for a psychiatrist.

[27] N.P. also had difficulty recalling details about the meeting. She recalled discussing the allegations. Although she was unclear about what J.P. alleged had happened, she recalled him saying that C.L. had asked him to do things but that he had not done them. She also recalled that J.P. said that things would happen when he and C.L. were alone together when they went to look for C.L.'s karate uniform.

[28] N.P. recalled J.P. being asked whether he wanted the police contacted or whether he wanted C.P.'s parents to deal with the issue. He chose the latter option. It was N.P.'s understanding that C.L. was to be grounded and then enrolled in church programs.

[29] When asked whether she remembered C.L. saying anything, N.P. initially testified that C.L. kept saying that the allegations were not true. She later clarified that C.L.'s father had told her that C.L. had denied the allegations, but she did not hear him say this herself.

(iv) Police Involvement

[30] Nobody contacted the police after the disclosure, although J.P. stopped going to the L. home after school. On a couple of occasions, J.P. went to the house to visit G.L. but C.L. was not present. Eventually, the two families ceased communicating.

[31] In September 2015, the Peel Children's Aid Society ("CAS") investigated J.P.'s family because of an incident unrelated to C.L. or the allegations. During the investigation, the CAS worker asked J.P. routine questions about whether anybody had ever touched him in private areas. In response, he told the CAS worker of his allegations against C.L. As a result, the police were contacted and C.L. was charged.

B. The Defence Case

(i) Overview

[32] C.L. testified. He was 15 years old at the time of his testimony. He was in Grade 9 at the time of the allegations and had just turned 14. C.L. was heavily involved in sports at school. He agreed with J.P.'s description of the after school arrangements whereby J.P. would be at his home each afternoon. He disagreed, however, that he was paid to babysit J.P. Although he occasionally walked J.P., G.L., and others home from school, it was his mother who was paid to watch J.P.

[33] C.L. denied any sexual contact with J.P. on any occasion. He testified that during the period in question, he was rarely at home and was usually at school practicing for sports teams. He acknowledged, however, that he was sometimes at home and would have had an opportunity to commit the offences.

(ii) The Allegations

(a) The "Sleepover Incident"

[34] C.L. agreed that J.P. sometimes slept over at his home. He testified that he and his brother, G.L., shared a bedroom but when G.L. had a friend sleep over, he and the friend would sleep in the living room and C.L. would remain in the bedroom. C.L. denied ever going to the living room at night when J.P. slept over and denied ever waking him up.

(b) The "Red Controller Incident"

[35] C.L. agreed that he had a Playstation video game unit and that he occasionally played "Black Ops 3" with G.L. and J.P., although he maintained that he did so rarely.

[36] C.L. testified that the Playstation was first purchased when he was in Grade 5. It came with one controller, which was black. When he was in Grade 6, he was given a second controller, which was blue, as a Christmas present. At some point, he also got a gold controller. C.L. testified that he believed that he had given the black controller away in April 2015, but was not sure. He believed that the blue controller broke at some point. He denied ever having a red controller.

[37] C.L. testified that he never asked J.P. to help him find a controller. He explained that only two people could play Black Ops 3 at a time (which J.P. agreed was the case), so there would have been no need for a third controller.

(c) The "Karate Incident"

[38] C.L. acknowledged having taken karate lessons. He achieved an orange belt in 2013 and then a green belt in April or May 2014. He went to lessons twice a week during the school year, but had no lessons during the summer break. He sometimes competed in tournaments.

[39] C.L. testified that kept his gi in a bag in a closet near the front door of the house, together with other sports equipment. When he went to a lesson, he would take the gi with him and change at the dojo (karate school). He never changed into his gi in his bedroom.

[40] It is not in dispute that C.L. broke his wrist on August 3, 2014 and had to have a cast on it for several weeks. He testified that he was unable to attend karate classes as a result of the broken wrist. By the time it healed, he had lost interest in karate and never resumed his lessons. The last lesson he attended had been in June 2014.

[41] C.L. denied the karate incident as described by J.P. He was no longer involved in karate during that period and would not have changed into his gi in his bedroom.

(iii) The Meeting

[42] According to C.L., the meeting with J.P. and his mother was the first time he heard about J.P.'s allegations. He had returned home from basketball practice and heard his mother call out to him, saying that he was in trouble. He thought she was joking but when he entered the living room, he saw his parents and N.P. and their facial expressions made it clear that they were serious. At this point, J.P. was walking upstairs.

[43] C.L. testified that he could not recall all of the details of the meeting. Somebody said that J.P. had said that he had asked him to do something. At one point, J.P. was called down from upstairs and asked something about jail or a psychiatrist. C.L. then went upstairs. A few minutes later, he heard the front door close and assumed that J.P. and his mother had left. C.L.'s mother then came upstairs and asked "What the hell is happening?" C.L. replied "I don't even know" and then went to sleep.

[44] C.L. agreed that he was shocked by the allegations. It was suggested to him that he did not deny the allegations when confronted during the meeting. He initially agreed. He testified that this was because he thought that to do so would simply have led to more conflict. In re-examination, he added that he had not been given an opportunity to respond. He later stated that he could not remember if he had denied the allegations.

II. ANALYSIS

A. Relevant Legal Principles

(i) The Evidence of Children

[45] J.P. was 10 years old when he testified and eight at the time of the alleged offences. There was a time when the evidence of children was viewed as inherently suspect. That time is past: R. v. W.(R.), [1992] 2 S.C.R. 122 at para. 23. As well, it is now clear that it is wrong to assess the testimony of a child in accordance with the standard applicable to an adult. Children experience the world differently from adults and may not be able to recall details which would be important to an adult. As a result, contradictions and inconsistencies that would be significant in the assessment of the credibility of an adult witness may be of lesser or even no importance when assessing the credibility of a child: R. v. B.(G.), [1990] 2 S.C.R. 30 at para. 48. A skilful cross-examination is likely to confuse a child resulting in testimonial inconsistency regardless of whether the child is being truthful: R. v. F.(C.C.), [1997] 3 S.C.R. 1183 at para. 48. I am not suggesting that Mr. Hogan's cross-examination in this case was in any way improper. To the contrary, it was conducted gently and respectfully.

[46] The fact that J.P. did not immediately make a complaint about the alleged sexual misconduct cannot, by itself, give rise to an adverse credibility finding. There are many reasons why a young complainant may not immediately disclose that he is the victim of an offence: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 60-63.

[47] While the evidence of children should be assessed differently, this does not affect the burden of proof. In all criminal cases, regardless of the age of the witnesses, no finding of guilt can be made unless the Crown has proven the essential elements of the charge beyond a reasonable doubt: W.(R.) at para. 25.

(ii) Assessing Credibility

[48] J.P. and C.L. testified to contradictory versions of events. Their evidence cannot stand together and to reach a verdict in this case I must assess the credibility of each. This task, however, does not involve simply choosing which version of events I prefer. The correct approach in cases such as this was set out in R. v. W.(D.), [1991] 1 S.C.R. 742. I must consider whether I believe C.L.'s evidence and, if so, he is entitled to an acquittal. Even if I do not believe his evidence, I must still consider whether it leaves me with a reasonable doubt as to his guilt, in which case he is also entitled to an acquittal. Even if his evidence does not leave me with a reasonable doubt, I must still consider whether the evidence I do accept satisfies me of his guilt beyond a reasonable doubt. Then, and only then, may there be a finding of guilt.

[49] As this is a judge alone trial, I am not required to consider the evidence in any particular chronological order or in accordance with any strict formulaic structure: R. v. Minuskin, 68 O.R. (3d) 577 at para. 22.

B. The Case for the Crown

(i) The Testimony of J.P.

[50] The Crown's case relies primarily on the evidence of J.P. as nobody else claims to have witnessed the alleged offences. A video of an interview of J.P. by a police officer was admitted on consent pursuant to s. 715.1 of the Criminal Code. For the reasons explained earlier, the matter did not come to the attention of the police until September 2015. As a result, J.P.'s statement was made several months after the time frame of the allegations. In addition to the video, J.P. answered questions from both counsel at trial.

[51] J.P. was an impressive witness for his age. He answered questions directly and his answers were responsive to the questions. When he did not know the answer to a question or could not remember something, he said so.

[52] Defence counsel pointed to various inconsistencies in J.P.'s evidence which he submitted undermined J.P.'s credibility. For example, at one point J.P. stated that the red controller incident was the first incident, but later said that the sleepover incident was the first. As well, J.P. maintained that there were approximately 13 incidents, yet was unable to provide any details whatsoever with respect to any of them except for three.

[53] In my view, these inconsistencies are exactly the type which were referred to in W.(R.) and B.(G.). While they could be of considerable significance in the testimony of an adult, they are of little significance when one considers J.P.'s age. The s. 715.1 video was made over a year after the alleged incidents and his trial testimony was given several months after that.

(ii) Evidence of How the Allegations Came to be Disclosed

[54] As pointed out by defence counsel, there were discrepancies in the evidence about how the allegations first came to light. A.C. testified that J.P. spontaneously told her of the allegations on a Saturday while he was at her home and in response to a general question of "how are things?". She then told N.P. of the allegations the following day. J.P., however, testified that he told A.C. in response to a specific question about whether anything was going on between him and C.L. He told her while in her car after she had unexpectedly picked him up from C.L.'s home on a Monday. N.P. confirmed that A.C. first told her of the allegations on a Monday after unexpectedly picking J.P. up from the L. home.

[55] Defence counsel submits that these discrepancies give rise to an inference that J.P. had been somehow prompted to make the allegations. He points out that A.C. admitted that she thought that C.L. was "a bit off" and suggests that she had a motive to prompt J.P. to make allegations against him. He also points out that J.P. used the term "sexually assaulted" in his video statement and submits that this is not a term one would expect a child to use.

[56] I have some concerns about the evidence respecting how J.P.'s allegations were first disclosed. If A.C. had been told on a Saturday and had then told N.P. on a Sunday, J.P. would surely not have been sent to the L. home the following Monday and A.C. would have had no reason to pick him up. However, I accept J.P. and N.P.'s evidence that A.C. did pick him up and that she did so unexpectedly and without telling J.P. or N.P. that she was going to do so. Why then did A.C. testify to a version of events that did not occur? This is not the sort of thing about which one is likely to be mistaken. Why did A.C. pick J.P. up on the Monday? Why did she ask him whether C.L. had done anything to him?

[57] It is clear, in my view, that for some reason A.C. has chosen not to be forthcoming about some aspects of how the allegations first came to be made. However, my conclusion that some information has been withheld does not amount to positive evidence that J.P. was prompted to make his allegations. I do not have a complete picture of how the allegations came to be made, but this does not allow me to speculate about what took place. I will return to the issue of the discrepancies surrounding the initial disclosure later in my reasons.

[58] I agree that J.P.'s use of the term "sexually assaulted" was unusual for his age and is some evidence that he had spoken to an adult about the allegations. However, he used the term in his video statement that was made months after his initial disclosure.

C. The Defence Evidence

(i) Overview

[59] C.L. is clearly an intelligent and articulate young man. His testimony was mostly, but not completely internally consistent. He denied committing the offences and also denied some of the surrounding circumstances as described by J.P. He denied that there was ever a red controller or that he and J.P. would ever have had a reason to search for a third controller. He also denied taking karate lessons during the relevant time frame and maintained that he would not have changed into his karate uniform in his bedroom.

[60] The inconsistencies in C.L.'s evidence related mostly to his testimony about the meeting at his home following the initial disclosure of the allegations. At one point, he said that that meeting was right after he got home from school, but then said that he went to bed immediately following the meeting, which presumably would mean that the meeting was much later. He initially agreed that he did not deny the allegations during the meeting, then suggested that he may have denied them and then later stated that he could not recall what was said.

(ii) C.L.'s Evidence About the Meeting

[61] Crown counsel asks me to find that C.L. did not deny the allegations and that his failure to do so amounted to an adoption of their truth. In some circumstances, the silence of an individual in the face of assertions by others can constitute an adoption of those assertions. The principle was explained by Martin J.A. in R. v. Baron, (1976), 14 O.R. (3d) 173 (C.A.) in the following terms (at p. 187):

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to reply to them. Silence in such circumstances permits an inference of assent.

See also R. v. F.(J.), 2011 ONCA 220, 269 C.C.C. (3d) 258 (Ont. C.A.) at para. 46, aff'd without reference to this point 2013 SCC 12, [2013] 1 S.C.R. 565.

[62] However, not every situation where an accused remains silent in the face of an accusation can give rise to an inference of adoption. In R. v. Warner, 21 O.R. (3d) 136 (C.A.), the Court stated (at para. 20):

Silence may be taken as an admission "where a denial would be the only reasonable course of action expected if that person were not responsible": Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham: Butterworths, 1992), at p. 286. [Emphasis added].

The Court went to hold that in jury trials, the trial judge should determine in advance whether there was sufficient evidence from which a jury could reasonably infer adoption by silence before allowing the jury to hear the evidence (at paras 21-22):

Where the trial judge concludes that the evidence should go before the jury, he is still obliged to instruct the jury that it is for them to decide whether the accused, by his conduct, adopted the statements made in his presence and only to the extent that they were adopted should the jury accept them as true. In this respect, the jury must consider all of the circumstances under which the statement was made. [Emphasis added].

[63] More recently, in R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581 (C.A.), the Court stated (at para. 89):

As a starting point, I agree that a cautionary approach is required to the doctrine of adoption by silence. The need for caution arises from the potential for inaccuracy in jury suppositions about how a person "should" respond in particular circumstances, particularly unusual circumstances or circumstances involving significant stress: see McWilliams' Canadian Criminal Evidence, at p. 7-137.

The Court had earlier quoted the relevant portion of McWilliams (at para. 58):

One must approach adoption by silence with great care. In many cases the inference of adoption is based on perceptions of how the accused should respond in what are often extreme and unusual situations. Jury suppositions about how an accused "should" behave in such circumstances may be inaccurate. They should be cautioned to use care before finding that an accused has implicitly adopted a statement by virtue of his failure to respond in a particular way. [Citations omitted.]

[64] Based on these authorities, I conclude that the following principles apply when considering whether silence by an accused constitutes adoption:

• The inference should only be drawn with "great caution", particularly where the accused remains silent in unusual or stressful situations.

• The inference should only be drawn "where a denial would be the only reasonable course of action expected if that person were not responsible".

• All of the circumstances in which the statement said to be adopted was made must be considered.

[65] In this case, C.L. was undoubtedly in an unusual and stressful situation at the time the allegations were made. He unexpectedly found himself at a meeting with his parents, N.P. and J.P. where the prospect of sending him to jail or to see a psychiatrist was being discussed. More importantly, I am unable to consider all of the circumstances in which the statement was made because nobody who was at the meeting and who testified was able to recall with any precision what was said. I cannot conclude that a denial would have been the only reasonable course of action for C.L. if he had not done what was alleged. In my view, in the circumstances of this case it would be most unsafe to draw the inference that C.L.'s silence constituted an adoption of the allegations.

[66] Crown counsel also submits that C.L.'s evidence that he was unable to recall what was said at the meeting was not credible. She submits that a meeting where such serious allegations were made and jail and a psychiatrist were discussed would have been so significant to C.L. that it "defies logic that that wouldn't be forever etched in his brain". With respect, while I recognize that there is a common belief that stressful events are "etched in" or "imprinted on" an individual's mind, I am not sure the belief is accurate. The evidence of N.P. is illustrative in this regard. Being informed that one's child is the victim of sexual abuse is undoubtedly a very significant and stressful event for any parent, particularly where the allegations relate to a family friend whom the child sees every day. Notwithstanding this, N.P. could recall very little of what A.C. told her or what was said at the meeting. There is no suggestion that N.P.'s lack of memory is a reason to doubt her credibility. There is no principled reason why C.L. should be held to a different standard.

(iii) The Failure to Call Witnesses

[67] Crown counsel pointed out that the defence did not call any witnesses to corroborate aspects of C.L.'s testimony, such as whether he had indeed stopped taking karate lessons or whether he was spending a lot of time playing basketball, and submits that I should take this into account in assessing his credibility. Like inferences from the failure to deny an accusation, inferences from the failure to call a witness must be treated with great caution, as was made clear in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 at para. 39:

It is clear from these authorities that it will rarely be "appropriate" for the trial judge to comment on the failure of the Crown to call a particular witness, and even more rare to do so with respect to the defence. As Brooke J.A. went on to say in Zehr [(1980), 54 C.C.C. (2d) 55 (Ont. C.A.)], supra, at pp. 68-69:

There are many reasons why counsel may choose not to call a witness, and our Courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case. Often a witness is not called, and if the reason was known it would not justify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system, counsel is not called upon, or indeed permitted, to explain his conduct of a case [to the jury].

See also R. v. P.(N.L.), 2013 ONCA 773, 305 C.C.C. (3d) 105 (Ont. C.A.) at paras. 58-63.

[68] In this case, the evidence respecting the karate lessons and C.L.'s basketball schedule related to peripheral aspects of the allegations. Even if accepted, C.L.'s evidence on these issues was not dispositive of the case. While defence counsel could have called confirmatory evidence on these issues, there are many reasons why he may have chosen not to do so. In these circumstances, I am not prepared to draw the adverse inferences suggested by the Crown.

D. Conclusions

[69] While I am not persuaded by the aforementioned arguments for rejecting C.L.'s evidence, this does not mean that I accept it. C.L. presented as somewhat smug and cocky during his testimony, and as mentioned earlier there were some inconsistencies in his testimony. I am unable to conclude that I believe his denials.

[70] This is a difficult case. J.P. has no apparent motive to fabricate these allegations. By all accounts, he and C.L. got along prior to the allegations being made. J.P. did not present as vindictive. In fact, neither he nor his family wanted C.L. to be prosecuted. The police only became involved after J.P. was interviewed by the CAS worker. Of course, there is no onus on the defence to establish a motive for the complainant to fabricate the allegations: R. v. Krack, 71 C.C.C. (3d) 426 (Ont. C.A.) at pp. 561-562. The fact that no motive is apparent does not mean that no motive exists: R. v. Batte, 49 O.R. (3d) 321 (C.A.) at paras. 121-125.

[71] I have carefully considered the evidence in this case. While I do not believe C.L.'s evidence respecting the offences, I am unable to say that his evidence does not raise a reasonable doubt. Put another way, I am unable to resolve the contradictory versions of events with the requisite degree of certainty for a finding of guilt. My uncertainty is enhanced by the discrepancies in the evidence as to how the allegations came to be disclosed.

[72] I would add the following. People unfamiliar with the burden of proof applied in criminal trials sometimes misunderstand the effect of an acquittal and may conclude that this means that I believe that J.P. was lying. That is not the case. As I stated earlier, he was, for his age, an impressive witness. However, in our system of justice no finding of guilt can be made unless the charges have been proven beyond a reasonable doubt, a standard close to absolute certainty and far greater than probable or likely guilt. The verdict in this case means only that that very high standard has not been reached.

III. DISPOSITION

[73] For the foregoing reasons, C.L. is found not guilty on all counts.

Justice P.A. Schreck

Released: September 22, 2016