WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File No.: Central East - Newmarket 13-03944

Date: 2016-09-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

E.P.

Before: Justice P.N. Bourque

Reasons for Judgment

Released on September 23, 2016

Counsel:

M. Ventola for the Crown

M. Fairney for the Defendant

BOURQUE J.:

Overview

[1] The defendant is charged with sexual assault and sexual interference upon a 5 year-old girl. The defendant is some 60 years old, and at the time of the offences was residing in a home (his daughter's home) where the girl was being babysat. The evidence consists of the statement given by the girl to the police and statements given by the defendant to the girl's parents.

Evidence of the Complainant

A.A.

[2] A.A. is a young girl and is now 7 years old. At the time of these alleged offences, she was 5 years old. Her evidence consisted largely of the statement that she gave the police. The statement was entered into evidence under section 715.1 of the Criminal Code and marked as Exhibit 1A. A transcript of the statement was marked as Exhibit 1B. In her statement, she refers to the defendant as "Lolo".

[3] The witness essentially says that the defendant touched her vaginal area under her clothes. It happened when she was sitting on his lap in the living room watching T.V. with the defendant's two granddaughters in the room. As may be expected, from such a young witness, the allegation in the statement emerges in a somewhat disjointed manner. The officer interviewing her has to direct her mind to the allegation.

[4] In her statement to the police, the witness states that (at the 13th page of the interview) "…Lolo, but I'm I...don't go there anymore because my Lolo always touch my private."

[5] She went on to state: "When we's watching, he do it, going under my panties".

[6] When asked by the officer to explain further, the witness states: "I just forgot".

[7] She goes on to say that "My mom is very mad at that"…"because of Lolo".

[8] When pressed further by the officer to give more detail of what she told her mother, the witness says: "I forgot….I really forgot". When asked by the officer when was the last time that Lolo touched her privates the witness states: "Um-um".

[9] At one point in the interview, the witness says that the defendant has "squishy hands"…and squishy face".

[10] The officer asked the witness where in the house it happened, the witness stated: "...I was – it was in my uncle's house"…"it was like in my uncle's house"…"and the house number is 1-7-7".

[11] When the witness is asked what happened next, the witness says: "…How do I forgot it so fast? Pardon me?"

[12] After a break in the interview, the officer returns to the room and asked more direct questions. She asked what the defendant used to touch her privates and the witness replied: "his hand". The witness also added: "When - when …when he put it in my – but - but he smell like fish in his hand" ... "but I think um Lolo didn't – didn't wash his hands after he cook" ... "maybe that one that's maybe that one was tickling my – tickle me in me"..."right here"..."yeah, that's my privates".

[13] The officer asks the witness whether the touching happened once or more than once the witness said "Huh. Less...less because sometimes he don't touch my private".

[14] The officer asks what is she doing when he touches her privates and she responds: "I was watching t-v...he's in the cellar in the living room…with Lolo...sitting on the floor on the rug and...Lolo was in the – sitting in the rug, like – like me then … when I was sitting down in Lolo's lap, he put his hand in my private. Look. Look down. Like that".

[15] Then the witness states: "No I just – I've just said Lolo stop ... and he - but then he stop" ... "I didn't said like, Lolo stop it, I just said Lolo. Like that".

[16] In cross-examination, the witness could not provide any more detail to what she had said in her statement to the police. She had no recollection of when this event (or events) happened and could not relate it to any other event, including when she told her parents. She could not provide any other detail of the event itself. She could not really speak about any of her activities in that period of time. She would say in response to virtually any probing question that "she forgot". Her standard reply to any probing question was just to repeat the core allegation. She did not retreat from the allegation.

[17] Her demeanour in the witness box could only be described as that of a typical 7 year old. I am not sure she had any idea of any of the seriousness of any of these proceedings. When she did speak of the allegation, her demeanour did not change. There was no clue in her demeanour about whether this event had happened to her or not. That of course is not a pre-requisite to the testimony of any complainant to such an offence, but it did strike me that the events that she spoke of had no discernable effect upon her. I would go so far as to say that there was an element of rote to her answers. Questioning her was very difficult, as she would be in a constant state of high spirits, pausing only to say again that she forgot, when asked about something in relation to the allegation such as whether she spoke to any of the other adults in the home about the events.

[18] The counsel asked her about any conversations she had with her mother about these allegations and she said in the course of that exchange: "Lot of things can't remember but remember E.P touching because I remember what mommy said". When pressed she then said she forgot if mommy said anything to her about it and then denied it.

Evidence of the Crown Witnesses

M.A.

[19] M.A. is the mother of the complainant. She testified that her child was being babysat at the home of Lolita and in that home were Jackie and Norman and their grandparents including the defendant. She stated that the child would be babysat there during the day while the witness and her husband (N.A.) were at work.

[20] She stated that on May 16, 2015, as she and A.A. were in their van going to pick up her husband N.A. at work they saw a man and woman walking and they were holding each other's bums. She said that A.A. said: "this is the same thing as grandpa did to me".

[21] The witness asked her how it happened and the child said: "she said it was inside her pants and inside the pantie". The witness said that the child made a gesture by placing her hand inside her panty. The witness said that she was angry and shaking and told the child that "that was enough". The child said the same thing two more times. The witness went and picked up her husband who spoke to A.A. in the van and the child said she was touched inside her panty and her vagina was touched. Her husband asked if the hand went inside her vagina and the child said "No". She also said that "it smelled fishy".

[22] The witness told the crown that the child said that it happened in the living room and she was sitting on grandpa's lap and they were watching spider man and he placed his hands inside panties on her vagina". In further examination, the child did not use the word Vagina but used a Tagalog word "pic", to describe her vagina.

[23] The witness called Lolita and she said that E.P was not like that. Her husband wanted to go to the police.

[24] They arranged a meeting and the witness and her husband and A.A. met with Jackie and Lolita. They were speaking Visayan language. A.A. does not speak Visayan. She says that A.A. told them that she was touched in her panties and she even demonstrated it. She placed her hand inside her panty. This conversation happened in the van outside Lolita's house. E.P was not present.

[25] She denied that Jackie told her about an incident where the child showed her privates. She did not know if Jackie said that to A.A.. She stated that she admonished the child on a previous occasion about showing her breasts. She also stated that before May 16, 2015, she had told her child that is was wrong for someone to touch her privates.

[26] Her husband (N.A.) was taping the conversation in the van on his cell phone. The witness was aware of that. The recording of the conversation in the van was not produced to the court.

[27] N.A. asked to speak to E.P and all went into the house except the witness and A.A.

[28] The witness spoke of her attendance with the child at the police and stated that A.A. asked "why were we going to the police and asked me what she was to say". She then said: "E.P is in trouble". The witness said that she told A.A. that he is not in trouble but we have to correct what is not right.

[29] She said that she did not ask A.A. again what happened but A.A. volunteered it to her again. She denies talking to A.A. about these specific allegations.

[30] The witness said that they came to the court two times before the trial and the witness told A.A. to remember what happened with E.P and A.A. said: "I remember".

[31] In cross-examination the witness denied that Jackie in the van asked A.A. if she was mistaken and if E.P had told her not to expose her privates. The witness did not remember Jackie telling her about a previous incident where Jackie had to discipline A.A. for exposing her privates.

[32] She said that the child had never complained to her about anything at Lolita's house. She stated that E.P would often cook for the family and prepare fish. She also was aware that E.P would bathe the younger two girls in the house (not A.A.).

N.A.

[33] N.A. is the father of A.A. He stated that he was told by his wife about the allegations and he spoke to the child. He was angry and wanted to go to the police right away.

[34] The witness stated that his wife wanted to speak with the family of E.P and he agreed to do so. That evening he and his wife and A.A. drove to Lolita's house and first they spoke in the van with Lolita and Jackie. He said that A.A. told them and pointed down to her privates.

[35] He was recording this on his cell phone. He said he tried to turn off the recording but was unsuccessful. He wanted to speak to E.P and they went into the house and sat in the living room with others in the house. The conversation was taped and the Crown provided an English translation.

[36] I listened to a portion of the recording. Obviously I understood none of the speaking as it is not in English. It was a very poor recording with a lot of background noise including a television. There are lots of words and phrases missing.

[37] The conversation is very difficult to follow. I get the impression that of times the defendant and this witness are not referring to the same thing.

[38] The Crown refers to several portions which he says are something of an admission of guilt:

01:51 WITNESS: Are you crazy? You put your hand in….in A.A.'s privates?

01:58 DEFENDANT: Oh, no. It was just once.

[39] The witness did not think this was an admission but only a reference to a statement before that about him bathing the younger child in the house. The defendant denies the allegations several times when he says:

02:02 DEFENDANT: I did not put it in her private…

02:19 DEFENDANT: I didn't do anything to the pipi of the child but….

[40] Sometimes when the witness is trying to confront the defendant and get him to admit that he touched the privates of A.A., the defendant makes gestures which the witness describes as a pushing out with his hand.

[41] The following is an example of how some things may seem like an admission but may also be the witness and the defendant talking past each other:

03:57 WITNESS: …You clutched her ari (privates) right?

04:00 DEFENDANT: Yes I clutched it because she would say ohhh Lolo, Lolo I did it like this like this (the witness says that the defendant is pushing motion out with his hand)

04:04 WITNESS: So you put your hand in her crotch.

04:08 DEFENDANT: Oh. Right here. I did not insert it in hour (her?) crotch. Hey this would destroy the kid's kuan.

04:13 WITNESS: So how many times have you done this from the beginning"

04:16 DEFENDANT: Oh, it was just once upstairs

[42] At one point in the transcript, the defendant describes the child sitting on him while he is watching TV. The defendant states (05:15) "Oh, it was just like this, like this, oh, like this, oh, I would touch the children, oh, I did it like this".

[43] When the witness was asked what motion the defendant made, the witness pointed to his lower stomach.

[44] At 07:05, the defendant stated: "…really nothing was inserted".

[45] The witness was asked about the missing parts to the sentence and the witness remembering the defendant saying that he did not put his hand into her crotch.

[46] At one point, the defendant said that he was wrong (08:17) without saying what it is that he did that was wrong. He goes on to state (09:01) "That's really ok because nothing harmful happened. But if in your mind it was like that, but for me there's nothing in my mind that was harmful."

[47] He states at (11:36) "As long as…a person touches it…at fault. It is my fault. The kuan, it is certainly my fault. But these kuan that are wrong, that's not me. But for me, I was just really touching."

[48] There is one point in the transcript which is the closest thing to an admission where he says (19:38) "It was just me. I am saying that I touched A.A.'s pipi".

[49] The witness stated that pipi was another word for vagina.

[50] The witness was of the view that the defendant had confessed to touching his daughter on her vagina.

[51] The conversation as translated is very difficult to follow. The language used by the parties (Visayan) when translated contains words and phrases which are hard to completely understand. The demonstrations by the witness in the witness box describe a person doing a pushing motion and indeed a touching of the thigh rather than any grabbing of anyone's crotch area. The most important potential admission (0:10:00:3) is where the defendant says there was sitting on his lap and a touching (accompanied by a description). The witness cannot remember the description.

[52] There is could be an admission of touching (0:10:00 and 0:11:36 and 0:12:09) by the defendant without saying what the touching consisted of.

[53] After reviewing all of the statement and the evidence of the witness, the totality of the recorded interaction does have the defendant admitting at least one point to a touching and it could be consistent with what the child has described in her evidence. In that sense it is at least (if I give it weight) some corroboration of the evidence of the complainant.

Evidence of the Defence

E.P.

[54] The defendant testified. He denied touching the child A.A. on her private parts. He stated that he was visiting his daughter Jackie and he and his wife were from the Philippines. He stated that he would always cook for the family, would clean and clean the outside of the house. He would walk the child Noreen from the bus stop each day.

[55] He stated that he would often watch television with the children and the youngest of Jackie's children would often be sitting on his lap. Sometimes the elder of Jackie's children and sometimes A.A. would also sit on his lap. He describes that he would sometimes put his arms around the children on his lap to stop them from falling.

[56] He described one incident when he was bathing the youngest child and A.A. came into the bathroom and pulled her shorts away from herself. The defendant indicated that he brushed her away with the back of his hand on her stomach.

[57] The defendant was asked many questions about the meeting with N.A.. The witness stated that he was frightened by N.A. whom he describes as loud and kept repeating his accusations. He stated that he felt confused, and not all of what he said was in the transcript (Exhibit 2B).

[58] With regard to the fact that he may have made some admissions (referred to above), he stated that he did so from the pressure put upon him by N.A.. He was pressed repeatedly and vigorously by the Crown as to why he made these admissions. The defendant responded differently, sometimes saying he was confused, sometimes saying he was interrupted (that is true on some occasions) and even saying there were problems with the transcriptions (some are obvious) and even suggesting that N.A. could have manipulated it. While I ultimately find that there are admissions upon the transcript, I do not make negative credibility findings against the defendant because of his several explanations. It is obvious that he is attempting to put his story forward to an interrogator who is not accepting what he has to say.

Noreen

[59] The child Noreen is about 8 years old and is the granddaughter of the defendant. She confirmed that she would watch TV with her grandfather, her sister and A.A. She stated that they would often watch Spider Man. She stated that the defendant never assaulted A.A. as has been described by A.A.

J.V.

[60] J.V. is the daughter of the defendant. She lives with her husband (Norman) her two daughters (Noreen and Noresse) her aunt (Lolita) and her parents (E.P and his wife), in their small home in Markham.

[61] She described the family situation. She stated that her parents came from the Philippines as tourists and were residing in an upstairs bedroom. The aunt (Lolita) lived downstairs in the basement and the two girls shared an upstairs bedroom as did she and her husband.

[62] The child A.A. came to be babysat by them in their home as a result of the fact that Lolita met A.A.'s mother at the school bus stop. It was Lolita who was performing the bulk of the babysitting, and whatever financial arrangements were made were made between Lolita and A.A.'s mother (M.A.).

[63] A.A. would come after school with the witness's oldest child (Noreen) after 3:00 p.m. At home would be her parents and Lolita would be home before 4:00 p.m. The children would play, watch TV and do their homework.

[64] The children would be largely in the main floor area which was a living room, dining room and kitchen and a hall.

[65] The area was described as a "Circle" and was open to sound and view.

[66] The defendant had no babysitting function. He would sometimes watch TV be in the company of his granddaughters. A.A. would be present. The witness described A.A. as part of the family.

[67] The witness stated that A.A. would sometimes complain to her (and her mother) about the fact that Noreen would sometimes fight with her and not share her things. She never received any complaints from A.A.

[68] The witness spoke of a time that the child (in the course of play) pulled the front of her pants down slightly. The witness took the time to explain that it was not appropriate to show herself to anyone and telling her not to let anyone touch her.

[69] She also related the conversation in the van with A.A. and her parents on the night that the defendant was confronted.

Analysis of the Audio Conversation

[70] The conversation which was recorded on by the witness N.A.

[71] The issue in my mind is the weight to be accorded to the statement. The following circumstances of the taking of this recorded conversation gives me concern:

(i) the recording is not of the best quality and contains many parts which cannot be heard;

(ii) the fact that the conversation was being recorded without the knowledge of the defendant;

(iii) the fact that the meeting was a "confrontation" engineered by the father of the child. While he said that he was not showing anger I believe he was very angry (understandably so) and this anger was evident to the participants in the conversation;

(iv) the father of the child was originally met with denials and during the further course of the conversation, the father clearly expressed his frustration with the denials and a clear refusal to accept what was initially said;

(v) the defendant's will was clearly overborn and I believe that the several statements of the father indicating that he would not (or possibly not) go to the police would have had an effect upon him. For example: (17:53.0)" …Before we went to the park…I thought that I would rather that I go directly to the police station." (19:00.2) "But if I see a policeman there now…I see a policeman, I will really ask him. How can he have done this. Or what would their suggestion be."

[72] I take into account that this was not a casual conversation. This was a planned interrogation of the defendant by N.A.. He was angry and there is nothing that the defendant could say that would change his mind as to the guilt of the defendant.

[73] N.A. swears (13:36:9) "...It's about my child, Damn! Even to my child! Touched! Damn!" I note the translator is using exclamation marks so I assume N.A. was raising his voice considerably.

[74] This interrogation took place in front of his family and was also something of a family shaming. While the Crown suggests that the family presence could be something of a comfort to the defendant, I think it took on the look of something akin to "a silent chorus in a Greek tragedy".

[75] N.A. makes reference several times to potential violence when he states: (24:06.6) "Ah it's like that ... "Nong, if it were in some other place…If you were in Saudi, you are finished. You will be killed".

[76] It is clear that if these factors were part of a statement made to a police officer, then the Crown could not have proven the statement to be voluntary under our "confession" laws (the Crown has made that admission).

[77] That it was not made to a person in authority allows it to be admitted into evidence but all of the factors noted above (which were factors favouring non admissibility of a confession) would factor into my assessment of its weight.

[78] In R. v. Hodgson, [1998] 2 S.C.R. 449 the court quoted the rule that [48(11)] "If the trial judge is satisfied that the receiver of the statement was not a person in authority but that the statement of the accused was obtained by reprehensible coercive tactics, such as violence or credible threats of violence, then a direction should be given to the jury. The jury should be instructed that if they conclude that the statement was obtained by coercion, they should be cautious about accepting it and that little if any weight should be attached to it."

[79] In my analysis I note that the defendant said he was fearful. While the defendant did not shake his fist in the defendant's face, I believe that his anger and his accusations and his references to violence would be sufficient to put fear into anyone, especially an elderly man with no previous allegations against him of criminal behaviour.

[80] I find that this interrogation in its entirety is something that I will treat with great caution. While I accept that some of his utterances could be interpreted as an admission of guilt, I also feel that I can place very little weight upon it when I make my final decision.

Has the Crown Proven the Charges Beyond a Reasonable Doubt?

[81] The 5 year old (now 7 year old) child has made an allegation that she was touched upon her vagina underneath her underwear by the defendant while she was sitting upon his lap watching television.

[82] The Crown bears the burden to prove beyond a reasonable doubt that the events happened as the girl describes them.

[83] As stated in R. v. Lifchus, [1997] 3 S.C.R. 320:

The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence:

Reasonable doubt is not a doubt based upon sympathy or prejudice:

Rather, it is based upon reason and common sense;

It is logically connected to the evidence or absence of evidence;

It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

More is required than proof that the accused is probably guilty – a (Judge) jury which concludes only that the accused is probably guilty must acquit.

[84] As part of the assessment of the Crown's burden of proof, I recognize that the defendant has testified and has denied the charges against him. I therefore apply the doctrine of R. v. W.D. which states:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[85] I must assess the evidence of the defendant. He was adamant that he did not assault this girl. He is an old man and gave his evidence through an interpreter. There were times when he seemed to not be directly responsive to all of the questions put to him. I noticed the same occurrence with the prosecution witness N.A. I attribute some of these poor responses to issue of cultural and translation. There were times when he was deliberately not answering the questions directly. He would not acknowledge that he had contradicted himself and that on at least two occasions had given responses to N.A. which were inculpatory. I have discussed the so called confession above. I place little weight on any admissions. I also take into account the circumstances of the situation in trying to assess his responses to some of the cross examination of the Crown. The he may be contradictory in his responses to his motivation on thinking back to that evening does not surprise me.

[86] However, I find that he generally maintained his story, that he had the children on his lap on some occasions when watching television. I find that he was not seriously shaken in his denial. I do find however that his testimony cannot simply be taken at face value, notwithstanding some confirmation from the defence witnesses.

[87] The evidence of his daughter and granddaughter gives some support to his evidence. Clearly there was opportunity to commit an assault but also clearly any contact with the child in the living room was in a public part of the house and frequented by many. That does not preclude the events from happening and does not preclude the defendant from simply being reckless as to whether he would be discovered. An allegation of abuse which is alleged to have happened in a private place would carry more weight, but the scenario described certainly possible.

[88] Even if I cannot simply rely on his statement, I must also decide whether it leaves me with a reasonable doubt. It certainly could. He provides an explanation for the events that the complainant describes which do not involve any abuse. He has been quite honest in his admission of all the factors which would give him the opportunity to commit an assault upon the young girl. He does not deny that on occasion he would hold her on his knee in the same fashion that he would hold his grandchildren.

[89] Ultimately I must view the evidence of the complainant.

Assessment of the Complainant's Evidence

A.A.

[90] I have discussed several aspects of this young girl's testimony. She was an engaging and cheerful young person. She did not seem to be under any stress or hardship when she gave her evidence. She spoke of the allegation is simple terms and her demeanour did not change.

[91] The Crown urges that I should give extra weight to her evidence because she repeated the same story to the police and to her parents. I must instruct myself in accordance with R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 where at par 39 "…Thus the statements could not be used to confirm her in-court testimony. However, the repetition of the essential elements of the allegations provide important context for assessing her credibility."

[92] I will follow that instruction. This is the evidence of a young child, young when she testified and younger when she gave her statement to the police. Issues of credibility have within them asking whether the witness is being truthful. I believe that she was attempting, within her capacity for introspection and understanding to be truthful. That such capacity is not the same as an adult, is something that I must take into account.

[93] The Crown urges that the evidence of the young girl that the defendant's fingers smelled of "fish" and a descriptor of the feeling of tickling is some detail that should assist me in accepting her evidence. It could. He states that the situation where A.A. describes the abuse happening is a situation not disputed and in fact confirmed. I don't find that surprising. It does lend some support to her credibility but it also is clearly memorable situation for lots of other reasons, that is was pleasant and enjoyable, to be with persons who treated her like family.

[94] I must however look at the totality of her testimony and her demeanour and her responses. As stated in R. v. B.(G.), 2 S.C.R. 30 at pg. 54-55:

…the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adult. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggestion that the standard of proof must be lowered when dealing with children.

[95] If this testimony was given by an adult with all of its difficulties I would probably reject it outright. It is because it is given by a child and because I cannot impose the same exacting standards that I give great consideration to all of it.

[96] There are many aspects which support it and many aspects which do not. It is not just a simple weighing of the pros and cons which is the determining factor.

[97] As stated by Schwarzl, J. in R. v. Barber, [2015] O.J. No. 1363:

[63] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: R. v. Wadforth, supra at para. 66.

Conclusion

[98] An engaging young girl of 5 years of age (now 7) has made the assertion that when sitting on the defendant's lap, he inserted his hand onto her vaginal area underneath her underwear. I have discussed the credibility of the young person and the credibility of the defendant.

[99] There is the real possibility that the allegations are true and that the event as she described actually happened at some point (or points) over this time. I have attempted to make as much allowance as is possible for the youth of the complainant and certainly do not impose the same standard that I would apply to an adult witness.

[100] Her overall demeanour with no revealed understanding of the import of what she relates, coupled with the repetition without being able (or willing) to discuss any other real aspects of the occurrence (occurrences), the taking of what is after all a benign situation (sitting on an old man's lap) in the middle of the family living room with persons about, and adding this aspect of criminality does leave me pause. Couple that with the fact that while I do not just accept all of the evidence of the defendant, his denials could, in these circumstances leave me with a doubt that may not be resolvable.

[101] It is in the strict application of the concept of proof beyond a reasonable doubt, with the analysis as required by R. v. W.D., which leads me to the conclusion that the doubt that I have is indeed a reasonable one and cannot be resolved in the prosecution's favour, notwithstanding the very able arguments of the Crown.

[102] I am therefore compelled to find the defendant not guilty of all charges.

Signed: "Justice P.N. Bourque"

Released: September 23, 2016