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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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: June 22, 2017

Court File No.: Peterborough

Between:

Her Majesty the Queen

— and —

J.M.

Before: Justice B.M. Green

Heard on: June 7th and 22nd, 2017

Reasons for Judgment released on: June 22nd, 2017

Counsel:

• Ms. Eberhard, counsel for the Crown
• Ms. Hiland, for the Defendant J.M.

A. Introduction

[1] J.M. is charged that, when he was a young person within the meaning of the Y.C.J.A., he committed a sexual assault on his brother F.M. and he touched him when he was under the age of 16 years old for a sexual purpose with a part of his body, to wit: his penis.

[2] Counsel fairly conceded all facts with respect to the jurisdiction and the identity of her client. She also conceded, that while the dates of the alleged offences in the Information may specify a time period that did not conform to the evidence, the dates of the alleged offences are not material to the issues to be decided in this case. These admissions significantly assisted with focusing the trial on the specific issues for this Court's consideration. This type of conduct by informed and well prepared counsel should be both encouraged and commended.

[3] The Crown called two witnesses to prove these offences. K.C. was the foster mother of both boys and F.M., the complainant, is J.M.'s little brother. J.M. did not testify and the defence did not call any evidence. The sole issues to be decided are the credibility and reliability of the Crown's witnesses and whether their evidence proves beyond a reasonable doubt that J.M. is guilty of the charges before the Court.

B. Evidence

i. K.C.: J.M.'s Foster Mother

[4] K.C. was a foster mother for many years. She took in J.M. and his younger brother F.M. when they were both young boys in 2003. She was their foster mother for a number of years until she decided to become their permanent legal guardian. F.M. still resides with her. She spoke of F.M. in very loving terms referring to him as "awesome" and "a great guy".

[5] K.C. explained that F.M. has special needs. He has Asperger's syndrome, developmental disabilities and attention deficit hyperactivity disorder. In terms of quantifying the extent of his disabilities, she explained that he is immature and more like a 15 year old than an 18 year old. He is currently enrolled in school and attends a program for "Learning Life Skills" in Grade 12. She explained that F.M. can be very knowledgeable and recite extensive facts but only concerning topics that he chooses to be knowledgeable about or something that interests him. She said, for example, he can recite extensive details about wrestling or how many steps there are in the CN Tower because those topics interest him. However, he is not adept at problem solving skills and lacks common sense. She used a couple of examples to illustrate her point. For example, if he saw a pot on fire, he would acknowledge the pot being on fire but not necessarily understand how to respond to that situation or what to do about it. If a tap was left on and the sink was overflowing, even if his feet were getting wet and he knew that something was wrong, he would not turn off the tap unless instructed to do so. She also advised that he takes medication to assist with controlling his ADHD.

[6] K.C. related that over the years, she has fostered many boys in her home. When J.M. and F.M. came to live with her, they initially resided in Peterborough. A few years later, they moved to Bowmanville for a year. FM was in grade 7 when they moved there so he was 12 years old. JM is two years older than his brother so he would have been in Grade 9 and 14 years old. J.M., F.M. and K.C. resided together with K.C.'s partner, K.C.'s daughter and one other 7 year old foster child. K.C. was a stay at home mom with little interests outside the home because she was new to Bowmanville. Her partner was on disability so she was also often in the house. K.C. could not recall any evenings when she would not have been home at bedtime.

[7] The house in Bowmanville had two stories. There were three bedrooms upstairs and a place for K's daughter to sleep in the basement. F. and his brother J. initially shared a bedroom upstairs across the hallway from the room that K.C. shared with her partner. She described herself as a "very light sleeper" and she could hear the boys from her room if they called for her in their room. F. and J. had separate beds on opposite sides of the room. The other foster child slept in the third bedroom and K.C.'s daughter slept in the basement. Sometimes, the daughter's boyfriend would sleep over. K.C. did the laundry in the home. She did not notice anything amiss on either of the boys' underwear, bed sheets or blankets.

[8] While they were residing in Bowmansville, J.M. was out one afternoon and F.M. came and spoke to her about his brother assaulting him. He disclosed to her that his brother, J.M. had touched him inappropriately. Up until that disclosure, K.C. explained that she never had any concerns about the way the boys interacted with each other or their relationship. She described them as "amazingly close".

[9] F.M. told K.C. that his older brother had been "dry humping him over the blankets in the middle of the night" and that woke him up. K.C.'s impression was that F.M. was describing his brother "gyrating" against him. He indicated that J.M. was on top of him while this was happening. K.M wasn't sure but she initially testified that he told her that he was wearing his pajamas. She clarified that she was not sure if he told her that but he always wore pajamas to bed. She indicated that F.M. told her it happened "a few times" but only while they lived in Bowmanville. During cross-examination, K.C. initially maintained that F.C. said that it happened a few times but when she was confronted with her earlier statements to police she conceded that she said "I thought it only happened twice." Her answers on this issue were inconsistent. She went on to say "I guess maybe I'm trying too hard. I don't know. But two, a few, he did say two, I'm sure". Within seconds she said, "Hmmm. I'm not sure."

[10] She described F.M.'s demeanour when he made this disclosure as "very matter of fact" but that is just his personality. She explained that he does not process events the way other people do. He is more "blissful". She tried to remain calm while she was speaking with him. She specifically recalled asking him if there was anything else that he needed to tell her and he said no. He told her that was all that J.M. had done to him and she reassured him that it was okay for him to tell her if anything else occurred. During cross-examination, she agreed that she was close to F.M. They had a mother-son relationship and he relied on her extensively. F.M. trusted his mother, confided in her and they had a good relationship. She believed that they shared open communications.

[11] As a result of F.M.'s disclosure to K.C., she texted J.M. and told him to come home. Once he was home, she confronted him about what his brother told her. F.M. was present when she spoke with J.M. She talked with him for a long time and told him that it was wrong. J.M. did not deny the allegations but he did not admit them either. Instead, he kept his head down and nodded when she said that it was not acceptable behaviour. She explained that this was a normal reaction for the boys when they were accused of something, generally their reaction was "a lot of silence". She told F. that she gave him permission to punch J. in the face if he ever touched him again. The boys were not allowed to touch each other out of anger so she thought that would convey to F. how seriously she was addressing this complaint. She went on to say however that:

"and the reason I did that was so that I would know for 100 percent certainty if J did that and J would know that I knew for 100 percent certainty that he had touched F because F would never – he was not allow to hit anyone. So it was a big – it was a big deal, and my only way of knowing for sure that it actually happened again".

[12] That same evening, she took J.M. with her to a local police department and spoke with an Officer at a desk about what had happened to get some advice about what to do in this situation. She thought that the police officer would speak with J. and he would be scared straight. She testified that:

"I didn't know what to do because it was really F.'s word against J.'s and I wanted to honour F and not call him a liar but I didn't want to call J a liar either. It's a … it's a horrible thing."

[13] It is apparent from K.C.'s evidence that, while she took the F.'s complaint seriously, she didn't know which one of her boys to believe.

[14] Immediately after F.M. disclosed this conduct to K.C., she separated the boys' rooms. She put the other foster child in with F.M. and J.M. was put in a room by himself. Although she spoke with F. about getting counseling, she did not take him to seek any help because he didn't want to go.

[15] They lived in Bowmanville for less than a year before deciding that they wanted to be back in Peterborough. As far as K.C. was aware, the boys did not have any other issues with each other after that evening. She agreed in cross-examination that the boys shared a close relationship before the disclosure and that relationship continued after F.M. disclosed what happened to him.

[16] Five years later another foster boy from her home made a complaint to police about something that happened while in her care and he disclosed that something more serious had happened to F.M.. F.M. spoke with workers from the C.A.S. and the police and gave statements alleging much more serious and invasive sexual abuse at the hands of his brother J.M.

[17] C.A.S. contacted K.C. and apprised her of the allegations. She said that she went into shock when she heard the extent of the allegations. She asked F. if what he said was true and he replied "yes". She asked him why he didn't tell her when it first happened and he explained that he didn't want to upset her. Once again, she asked him if he wanted counseling and he told her that he just wanted to move on.

ii. F.M.: J.M.'s Younger Brother

[18] F.M. presented as a remarkable young man. He was polite, calm and very respectful throughout his evidence in chief and cross-examination. He is 18 years old. He has an exceptional memory for details about his childhood in terms of the different places that he lived, how long he lived there, the schools he attended and the special programs that he participated in.

[19] F.M. was asked about his special needs and he explained that he has Asperger's syndrome. He has a great attitude and describes himself as a "very high functioning person. My Asperger's makes me very smart and knowledgeable and I can obtain information from reading it over many years."

[20] He referred to K.C. as his mother. Throughout his childhood, he said that K.C.'s job was doing what a mother does. She packed his lunch, cooked dinner, did his laundry and took care of him.

[21] They moved to Bowmanville when he was in Grade 7. They didn't stay there for the whole grade because he remembered finishing Grade 7 in a school in Peterborough. He was asked who he lived with in Bowmanville. He told the Court that he lived with K.C. and J.M. He was asked if he lived with anybody else in Bowmanville and he said "no". Later on in his evidence, he recalled another foster child being in the home. He described the lay out of the house in Bowmanville in significant detail. He explained that he shared a big bedroom with his brother and they each had their own beds. His bedroom was close to his mother's bedroom.

[22] F.M. said that "at the start" this sleeping arrangement "worked out really good" until J. did something and he brought it up with K.C. After he told K.C. what happened, she gave J. his own room. He was asked how many times "it happened" in the year that they were in Bowmanville and he initially said "multiple occasions". He could not say exactly how many times his brother touched him inappropriately. He agreed that it was less than 20 times and less than 10 times but he could not say how many times. He stated "all I know is that it was a lot". These incidents only occurred at night in their bedroom when he was sleeping and there was no one else in his room other than J.M. F.M. explained that he was a very deep sleeper at that time in his life. He stated that he could have slept through an explosion.

[23] When F.M. was asked for details about the various incidents, he said that they were all similar but only three incidents involved penetration. He stated that the other incidents that did not involve penetration did not have any similarity to the incidents involving penetration but he could not provide any details at all about what happened during those occurrences. F.M. advised that he couldn't recall what actually happened on these other occasions because he was "too young" and he "honestly can't remember kind of that far back" and "I don't remember the details". In terms of the three incidents involving penetration, in examination in chief, he could not describe two of the three incidents but he claimed that they were all "exactly like the third time". The only difference he initially indicated between these three incidents was that he told K.C. after the third time.

[24] During examination in chief, F.M. could only recall the details of the last incident. That incident occurred the night before he told K.C that something happened. He went to sleep in his own bed wearing his pyjamas. He remembered that his top had a monster truck on it and the bottoms had teddy bears. He was very specific about the details of what he was wearing because he wore those pyjamas all the time. The next thing that F.M. recalled happening was that when he was sleeping, he was woken up by J. When he woke up, J.'s penis was in his "ass". He agreed that J.'s penis penetrated his "ass". F.M. was unable to provide any details about how his brother ended up behind him. All that he could recall was that he went to sleep with his covers on and he didn't feel anything or hear anything before being awoken by his brother penetrating him. He said that he woke up "as soon as he was penetrating me." He did not know whether or not his brother ejaculated.

[25] When F.M. woke up, he was on his stomach, the covers were pushed aside and J.M. was positioned behind him. He remembered that his pyjama bottoms were down "like almost around my ankles". When F.M. was asked for more details about his pyjamas being down, his evidence became confusing and contradictory. He indicated that at first, "I didn't know what had happened. I thought maybe I had gone to bed like that or something until the next night when it happened again but I woke up and J. was there".

[26] Although he was being asked about the night that he was anally penetrated by J.M., he began speaking about another incident when he woke up and his pyjama pants were down. He related:

A. Um, they, um, it's all kind of a blur because – because – because all, um, I can't really even remember what happened. All I remember is that, um, I'm sleeping, I woke up, I, um, because, um, I remember having to go to the bathroom and my pants were down around my ankles and, um, I was saying in my head, um, "Did I go to sleep like that?" And then I said to myself it's not a big deal because, um, I was kid and I did a lot of stupid things.

[27] F.M. explained that he woke up once and his pants were down and J.M. was sleeping. He went to the washroom and then he returned to bed and slept the rest of the night. F.M.'s description of this event about waking up and being confused by his pants being down is inconsistent with his allegations that his brother had been sexually assaulting him while he was sleeping on more than one occasion. During his evidence, it was apparent that he did not connect the alleged sexual abuse to the reason why his pants were down when he woke up. This inconsistency may be explained by F.M.'s unique mental challenges. His mother explained that he is not adept at problem solving or understanding cause and effect.

[28] As the examination in chief progressed through trying to ascertain when F.M. woke up with his pants down and what was happening when he would wake up in this state, F.M.'s answers became more confusing and inconsistent with his earlier testimony that he had been anally penetrated three times. He said that the second time he woke up with his pants down, it was the incident that occurred the night before he disclosed the abuse to K.C. He said that he only woke up with his pants down twice. The first time, he had no idea what was happening and the second time, J.M. was on top of him.

[29] He was asked if he ever consented to being touched by his brother and he emphatically replied "no, I did not agree because I did not like it and why would I like it, it's disgusting". He pushed J. off of him and told him "what are you doing" and "why are you doing this". He said that he "pushed him off exactly at the same time he had penetrated it (referring to his "ass"). He recalled waking up and seeing J, then pushing him off of him and saying "what are you doing".

[30] After he pushed his brother off of him, J.M. told him "it's not a big deal" and he responded "yeah, it is a big deal because I am your little brother and do you really know how disgusting that is?" J. returned to his bed and F. stayed up for the rest of the night to make sure that he wouldn't do it to him again.

[31] The next day, he sat down with his brother and talked to him but he didn't want to listen to him. After his brother left, he told K.C. what happened. He was emphatic that after he told K.C. that was the last time that his brother touched him inappropriately. He claimed that he told K.C. that "this has been going on for ages". Initially when he was testifying, F.M. said that he told K.C. that "J. raped me". Later on in his evidence, F.M. could not recall the details of what he told K.C. about the incident. He said that he did not tell her that J.M. raped him but he told her that something inappropriate happened to him. He explained that he didn't want to go into any detail because it was kind of uncomfortable "a little bit". He also said that he was young, he felt violated and he because he was just a kid he didn't really know how to explain things.

[32] F.M. recalled that K.C. told J.M. "that is your little brother. Do you know how disgusting that is?" He clearly remembered that K.C. told him that he could punch his brother in the face if he ever did anything like that to him again. She told him that way she would know if he actually did it. He felt relieved by K.C.'s permission to punch his brother because of "all the times" J.M. did this to him. He said that he wanted to punch him but he was afraid to get in trouble or to be grounded. Instead, he would push him off and try to use his words but his words weren't working to make this behaviour stop.

[33] After he disclosed these incidents to K.C., she moved J.M. into the room where another foster child had been staying. He could not recall that other child's name. He also could not recall what happened to that other child after his bedroom was switched. He guessed that "there was some kid there and he moved out or something, something like that."

iii. F.M. in Cross-Examination: J.M.'s Younger Brother

[34] Counsel for J.M. very gently, sensitively and quite effectively highlighted numerous inconsistencies and implausibilities in F.M.'s evidence.

[35] At the end of F.M.'s evidence in chief, the Court enquired whether F.M. could remember the first time his brother touched him inappropriately and he replied "no". During cross-examination, Counsel asked if he was able to recall the first time that J. anally penetrated him. Although he indicated in his evidence in chief that there were three incidents of penetration, he could only provide details of one such incident which was the last incident prior to his disclosure to K.C. He indicated that he couldn't recall the details of the other occurrences. During cross-examination, he related the details of one other occurrence.

[36] F.M. said that he could recall the first time he was anally penetrated. He related that the first time this happened was "probably spring" and it was "nice sunny spring weather". He remembered J.M. penetrating him and then "almost elbowing him in the face". He corrected himself and said that he actually did elbow him in the face and as soon as that happened, J.M. fell to the floor. He said that he "pulled up his pants" and said to J.M. "what the hell are you doing". It is notable that while testifying in chief he said that he only woke up with his pants down twice, once when nothing unusual happened and the other time during the last occurrence.

[37] Counsel proceeded to ask F.M. questions about other details and events but returned to this first incident later on during her questions. She asked F.M. again what he did during this first incident when he woke up and realized what his brother was doing to him. He said that "I grabbed him by the throat, like I reached back and I'm pretty sure I told you that didn't I?" Counsel clarified that she was referring to the first time that he was anally penetrated by his brother. F.M. repeated that he "immediately just shoved him off" like he "always did". He indicated that he was pretty sure that he grabbed him by the throat or somewhere or by the arms but then said "I can't remember where I grabbed him but I grabbed him and I threw him off." He did not mention elbowing him in the face, rather, his description became similar to the last occurrence. He testified that he recalled the door being open during this incident. He also distinguished the two incidents later on during his testimony explaining that during the first incident he woke up as his brother was taking his penis out of his anus and the last incident he woke up with his brother's penis inside of him.

[38] During re-examination, Crown counsel explored the blurring of the first and the last incident and asked him to clarify when the elbowing incident occurred. F.M. replied that during one of the incidents, he turned around and tried to grab J.M. but that didn't work so he elbowed him in order to get him off of him. His account changed again and he specifically said that he did not elbow him in the face. Instead, he said that he elbowed him in the neck just with enough force to get J.M. off of him.

[39] As noted, F.M. testified in examination in chief that he only recalled waking up twice with his pants down. The first time, nothing untoward was going on and the second time he recalled his pants being down was during the last incident when he was penetrated by his brother. He did not mention that he recalled another occasion when his pants were down although he did say that the other two occasions when he was anally penetrated were the same as the third time. Counsel carefully went through the sequence of events that included any recollection of him waking up and his pants were pulled down. She repeated that he indicated earlier that he recalled two times when he woke up with his pants around his ankles and he replied "yes, that is correct". The other time was the last incident that he related happened the night before he told K.C. Counsel clearly asked "and those were the only two times when your pyjama pants were around your ankles, correct?" F.M. replied, "yeah." It was evident that F.M. did not realize the inconsistencies in his assertions that he only woke up with his pants down twice but he also claimed that there were at least three occasions when his pyjama pants were not on when he woke up: the first incident of being anally penetrated, the time he woke up and went to the washroom and the last incident the night before he disclosed these incidents to K.C.

[40] When F.M. was asked for any details about the second time he was anally penetrated, he could not recall the second incident that he was penetrated at all describing is as "basically just all a blur". Counsel suggested that, considering his inability to recall any details, he can't say for certain whether or not he was actually penetrated during that second incident. F.M. agreed and reiterated that it was all a blur and that he couldn't remember anything from the second time so he really didn't know if J.M did it or not. It is impossible to reconcile F.M.'s assertions that he believes he was anally penetrated a second time (between the first and the last incident) with his evidence that he does not recall anything about that incident so he doesn't know if J.M. did anything to him.

[41] Counsel referred F.M. to earlier statements that he made to C.A.S. stating that he has been assaulted 8 times but F.M. was not able to recall making that statement. He did however agree that he told her that something happened with J.M. twice in one night. When he was asked what happened twice in one night, he replied that "it's all kind of a blur" and even though he was trying to think back to those incidents he was "drawing a blank".

[42] The third or last incident was the one that he described to the Court in his examination in chief. At the very beginning of the cross-examination, F.M. was asked if he and J. slept with their bedroom door open or closed and he replied, "most of the time J. and I slept with our door opened. And I can't ever recall a time that we closed it". (Emphasis mine) Later on during his cross-examination, when he was being asked whether the door was open or closed during other incidents, he replied "Okay. Um, yes, um yes, the door was open. Our, um, our bedroom door was rarely closed in Bowmanville. Rarely."

[43] Counsel asked F.M. to provide more details about the last incident. He was asked if he could recall the time of year when the third incident happened and he said he could not recall. He was asked if J.M.'s penis was between his buttocks as opposed to actually penetrating him. F.M. replied that he was sure that he was penetrated because that is what woke him up. Counsel asked if F.M. recalled feeling any pain during either of the incidents when he was penetrated. He indicated that he did not feel any pain but he felt violated and very angry.

[44] F.M. related more details about how he responded to the last assault. He claimed that he grabbed his brother by the throat while gesturing with both of his hands like he was strangling him and then "just frickin pushed him off my bed." He said that it wasn't really a strong hold. He didn't choke him, he only grabbed him. It is hard to envision how F.M. would have been able to grab J.M with both of his hands around his neck when he was on his stomach with his brother behind him either straddling him or in between his legs. When counsel pointed out that he had been lying on his stomach, he then said that he reached back with one hand and grabbed him by the throat and that way he could turn around and push him off.

[45] After F.M. pushed J.M. off, he asked his brother what are you doing and he told him what he did was disgusting. He said that J.M. replied "it's fine". He said "no, it's not fine. I'm your little brother. You shouldn't be doing that. Don't ever do that again." Counsel suggested to F.M. that he was yelling when he had this exchange with his brother. F.M. replied, "Yes. Screaming at him. I was very angry." He denied that J.M. was yelling because he didn't really yell a lot. Counsel repeated what F.M. just said that he was screaming at J.M. and they had the following exchange:

Q. Okay. But that night, you push him to the ground, and then you start screaming at him, right?

A. Yes. But, um, I made sure I closed the door. That way, K. didn't hear me screaming at him.

Q. When did you have time to close the door?

A. Um (unintelligible) um, um, I closed, um, the door as soon as I immediately pushed him off because, um, I didn't want to wake up K. or the other – or the other foster person that was in the house by, um, screaming at him. So I, um, I screamed at him, but I didn't scream at him very, very loud, because I didn't want to wake up the other people in the household.

Q. And your bedroom, I understood, was across the hall from K's, is that correct?

A. Uh, well, yeah. Yeah. It, um, yeah.

[46] F.M. began his evidence with testifying that he couldn't recall his bedroom door ever being closed but, at this point, he claimed that he immediately shut his door after he discovered that he had been sexually violated. During his testimony, he repeated that "well I grabbed him by the throat and I just threw him off and I screamed at him because I had had enough". During re-examination the Crown asked F.M. to explain what he meant when he said that he screamed but not loud and he explained:

Like, um, um, like I screamed like, um, you know like, um, I screamed at him a little loud but, um, I didn't scream like really, really loud, because I didn't want to wake up the other people who were sleeping in the household. Like, you know like, I didn't want to wake up the other people. But, yeah, um, I did scream, um scream, and I screamed loud, but I didn't scream like really, really, really loud.

[47] F.M. explained that he pulled his pants up while he was yelling at his brother. He didn't like to yell but he had already tried talking to his brother the other times and that wasn't working. He decided to yell at him during this last incident because he had enough. He confirmed that K.C. did not come into his room that night even though he was screaming and yelling.

[48] Counsel asked F.M. about providing prior statements to the police and C.A.S about what happened to him. Counsel suggested that what he previously reported was that "it felt like you were being raped". F.M. agreed that he said that because that is basically what J.M. did to him. F.M. did not appreciate the subtle difference between reporting that he felt like he was raped and stating he was raped. Counsel also asked him if he recalled being asked by the Detective if he felt and pain and he replied that he "wasn't sure because it was – it would happen while you were sleeping". Counsel suggested to F.M. that he believed or assumed that J.M. penetrated him because he woke up and J.M. was on top of him. F.M. replied "yes". However, it quickly became clear that F.M. did not understand the concept of "assuming" something. He said that he recalled saying that he felt like he was being raped but he went on to state "I agree that I was being raped." F.M. became a bit flustered with trying to answer these questions and counsel tried to clarify her query:

Q. So is it your understanding that.... When you were actually awake, did you actually feel J's penis inside you?

A. Um, um, um, no, it's because when I woke up, um, um, um, when um I woke up, um, um.... Sorry, just give me a second.

Q. Yeah, take your time.

A. It's because, um, when um I woke up, um, no, um no, it wasn't, it's because, um, it – um, it would be out, and um I would make sure that I would keep it out. I'm sorry, I just – should have answered that more properly, I'm sorry.

[49] It was obvious that F.M. was trying his best to honestly express himself about what he felt and experienced but he did not understand that Counsel was suggesting that he had not actually been anally penetrated, rather, he assumed that happened because of the position and state he found himself in when he was awoken by his brother who was positioned behind him.

[50] F.M. provided very specific details about what time he confronted J.M. the next day about what happened the night before. He told the Court that it was 2:30 p.m. when he talked to his brother. He remembered the specific time because his brother was planning to go out with friends and he asked him for a few minutes of his time. He remembered his brother looked at the time on his cell phone and he told him that it was 2:30 and he had plans to meet his friends at 3:00 p.m.

[51] Counsel asked him if he had any specific memories of any other occasions when J.M. touched him inappropriately and he replied, "no, I don't. I don't have any recollection of the other times, no recollection at all."

[52] F.M. agreed that, prior to his disclosure to K.C., he never asked her to change their sleeping arrangements and he did not tell her anything was occurring before the last incident. He was asked to describe his relationship with K.C. He smiled and said that "we have the best relationship". He agreed that he could trust her and that he felt that he could talk to her throughout his childhood. He admitted that he lied to K.C. in the past about stealing food out of her room. Counsel put to F.M. that he told K.C. that J.M. had "dry humped him over the blankets". He could not recall what he told K.C. although he agreed that he may have used similar words. He understood what dry humping meant and that would not have referred to skin to skin contact.

[53] F.M. related that K.C. had a serious conversation with J.M. and then J.M. never did it again. He repeated that K.C. told him that he could punch his brother in the face and he said that he had a better idea, he suggested that she should split them up. After that evening, he never had a problem with his brother again.

C. Legal Analysis

[54] The sole issue to be decided in this case is whether the Crown has proven the charges against J.M. beyond a reasonable doubt. This determination will depend entirely on the credibility and reliability of the Crown's witnesses since the defence did not call any evidence. The principles underlying R. v. D.W. are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of the Crown witnesses. As the Ontario Court of Appeal noted in R. v. Cyr, 2012 ONCA 919, [2012] O.J. No. 6148 at paragraph 50:

Third, the W. (D.) instruction, or its functional equivalent, is not limited to an accused's testimony or statement admitted at trial, rather it extends to other exculpatory evidence that emerges during trial proceedings

[55] Similarly, the Court of Appeal repeated in R. v. Perkins, [2016] O.J. No. 3988 at paragraph 36: "A trial judge is required to apply the well-known principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742, not only in relation to an accused's testimony but also to all potentially exculpatory evidence." Accordingly, a trial judge must relate the concept of reasonable doubt to credibility findings whether or not the conflicting evidence is called by the defence or it is adduced as a part of the Crown's case.

[56] When considering the evidence in a trial, it is important to distinguish between the concepts of credibility and reliability because they are different. As the Ontario Court of Appeal explained in R. v. H.C., 2009 ONCA 56, [2009] O.J. 214:

41 Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately:

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence

[57] The impact of any flaws in a witness' evidence on a Court's assessment of the credibility of that witness and the reliability of their account may depend on a myriad of factors including the age of the witness when the event occurred. The Court of Appeal in H.C. cautioned that:

42 Credibility requires a careful assessment, against a standard of proof that is common to young and old alike. But the standard of the "reasonable adult" is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult.

And further:

55 The assessment of credibility may not be a purely intellectual exercise. Myriad factors are involved. Some factors may defy verbalization.

[58] The evidence of any witness must be considered in the context of the applicable guiding legal principles particularly in cases that involve allegations of child sexual abuse. Every person giving evidence in court, of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. Please see: R. v. W. (R.), [1992] S.C.J. No. 56 at para. 26 (S.C.C.)

[59] Over the past 3 decades, there have been a multitude of decisions outlining the special considerations that a Court must be guided by when assessing the reliability and credibility of the evidence of children. Please see: R. v. W.(R.), [1992] S.C.J. No. 56 at paras. 24 to 29 (S.C.C.); R. v. B.(G.), [1990] 2 S.C.J. No. 58 (S.C.C.); R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont.C.A.)

[60] Justice Wilson, writing for the majority of the Supreme Court of Canada in R. v. B.G. at paragraphs 47 and 48, explained:

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. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration and I believe this is a desirable standard. [Emphasis mine]

[61] Although F.M. is now a young adult, he is recalling events that occurred to him when he was a child and he also has developmental disabilities as well as other challenges. In many respects, he has the mentality of a child. If there are minor inconsistencies in his evidence about peripheral details, then the Court must consider his young age and unique challenges when he experienced these traumatic events. As the Supreme Court of Canada noted in R. v. W.(R.) at paragraph 26:

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[62] This does not mean that any inconsistencies in a witness' account of what happened to them as a child are irrelevant. In R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 at paragraphs 8 to 17, the Ontario Court of Appeal reviewed all of these decisions and summarized the law as follows:

First, 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: R. v. W. (R.), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.

Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469, [1962] S.C.J. No. 27.

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[63] For example, inconsistencies in a witness' account about the number of times that they were abused may be a considered a peripheral detail in certain circumstances. The Ontario Court of Appeal in R. v. D.H. 2016 ONCA 569, [2016] O.J. No. 3815 held that:

50 Another issue that the trial judge labeled as peripheral was the complainant's inconsistencies on the number of times she was abused by the appellant. In R. v. H.S.B., 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme Court allowed that a trial judge may treat this issue as peripheral when assessing an adult witness's credibility in the context of remembering events from childhood.

However the Court went on to state:

53 While this analysis follows the Supreme Court jurisprudence in assessing the evidence from the perspective of an adult recalling terrible events from her past, it takes no account of the complainant's inconsistency in recounting the events to the police as an adult, then to the court the next year, going from abuse occurring 10 times to possibly 120 times, and the effect of this inconsistency on the credibility and reliability of her account in her evidence. As this court stated in M. (A.), at para. 12, "one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions."

54 The complainant went to the police as an adult and reported her story. Although the trial judge was entitled to treat the frequency of the abuse as a peripheral matter in terms of an adult recalling events from childhood, the trial judge failed to also treat and assess the major inconsistency between the complainant's report to the police and her trial evidence the next year about the number of times the sexual abuse occurred, as a prior inconsistent statement. She failed to consider how this significant change in the complainant's memory should be viewed in the context of both her credibility and reliability in recounting the events in a formal context with legal consequences.

[64] While some inconsistencies in a witness' account may be explainable because of their age or they are inconsequential details, significant inconsistencies in a witness' account cannot be ignored. In R. v. M.M.C., [2014] O.J. No. 1919, the Court of Appeal reviewed a number of frailties with a child witness' account and concluded:

52 The evidence about his penis, however, is not a detail of the "when and where" of the assault, nor is this a contradiction; it is about the nature of the assault itself. It is the kind of inconsistency that should engender caution as to the reliability of the witness, even a child witness. While the trial judge says that she does not need corroboration evidence to rely on and believe J.E.-J.'s testimony, as I said earlier, I think it was prudent in these circumstances to search for some.

[65] Similarly, in R. v. D.H., 2016 ONCA 569, [2016] O.J. No. 3815, the Ontario Court of Appeal also noted that:

41 It appears that the trial judge was implicitly accepting the mother's version of this event by suggesting that the complainant's recollection may have been unreliable because she was testifying as an adult about events during her very difficult childhood. However, if so, the trial judge provided no analysis as to why she concluded that the mother's memory was the correct one with respect to this particular event.

42 Furthermore, to characterize this as a peripheral matter was a misapprehension of the evidence. This was a significant issue in the narrative of the abuse time period and one of the few issues on which both the complainant and her mother were participating witnesses and about which they could testify directly. Nor could their evidence be reconciled: the complainant described a scene of crying and objecting to go -- not just on one occasion, but every time -- which the mother denied occurred at all.

[66] In this case, the inconsistencies in F.M.'s account are not about peripheral details. Rather, there are significant irreconcilable inconsistencies in his account about the assaults themselves. Moreover, despite alleging that he was assaulted multiple times, he could not provide any details about any occurrence other than one the night before he disclosed his abuse to his foster mother and one other occurrence but even those two incidents seemed to be blended together in his memories. The inconsistencies in his account were canvassed in the review of the evidence. Nevertheless, it is important to highlight a few of the challenging aspects of his evidence:

Initial disclosure: He had a positive loving and trusting relationship with his foster mother but he told her that he had only been dry humped over blankets twice as opposed to being anally penetrated on more than one occasion;

Varying accounts: When asked how many times he had been assaulted it varied from a multitude of times, going on for ages, a lot, down to under 10 times and ultimately, he could only recall two incidents when he woke up with his brother's penis either in or withdrawing from his anus. He could not provide a single detail with respect to any other occurrence and he provided very few details about the occurrences he could remember. He initially only recalled one specific incident in chief but he maintained that he had been anally penetrated three times. In cross examination, he remembered details about the first and last time but he agreed that he couldn't recall what, if anything, happened the second time.

Blurring details: With respect to the two incidents that he did relate to the Court, the most significant distinguishing features were how he resisted the assault. He indicated that during for the last incident, he pushed his brother off of him by grabbing him around the neck. While being cross examined, he said that during the first incident he elbowed his brother in the face to get him off of him, then he changed that to grabbing him around the neck, then he changed that to elbowing him in the neck.

Implausibilities: His mother was a stay at home mom who did not go out at night and she advised that she was a light sleeper. She indicated that she could hear the boys in the room across the hallway if they called for her during the night. F.M.'s bedroom was across the hallway from K.C. and he stated his bedroom door was always open. He said that he was screaming and yelling after the last occurrence but then said he was not screaming too loud so he wouldn't wake anyone in the house. Despite initially testifying that he could not remember his bedroom door ever being closed, he later said that he closed it immediately after he was assaulted the last time so no one would hear him screaming;

[67] There are a multitude of examples of the difficulties with relying on F.M.'s account. The inconsistencies in his evidence pertain to important details of the assaults themselves and whether they happened at all. There is no doubt that F.M.'s ability to recall what happened to him has been dramatically impacted by his age when these events occurred, his unique disabilities, how he processes information as well as the passage of time. He presented very credibly in the sense that he was earnestly and honestly trying to relate what he believes happened to him. Nevertheless, his account is fundamentally flawed and unreliable.

D. Conclusion

[68] There is no doubt that J.M. did something to F.M. that made him feel so uncomfortable and violated that he told K.C. and whatever was happening stopped immediately thereafter. Proof beyond a reasonable doubt of the charges before the Court, however, is a much more exacting standard. There is insufficient and contradictory evidence about how many times F.M. was touched, how he was touched, where he was touched, whether the touching occurred at all and in what circumstances. The Crown has not proven beyond a reasonable doubt the allegations against J.M. and he will be acquitted of both counts.

Released: June 22nd, 2017

Signed: Justice B.M. Green