Court Information
Court File No.: 16-S1003
Date: February 17, 2017
Ontario Court of Justice (at St. Catharines, Ontario)
Parties
Between:
Her Majesty the Queen
- and -
D.W.
Counsel
Ms. H. Nickel for the Crown
Mr. H.A.P. Little for the Accused
Publication Ban
An order has been made under s. 486.4 directing that any information that could identify the complainant, J.T., shall not be published in any document or broadcast or transmitted in any way.
Reasons for Judgment
NADEL, J.:
Introduction
[1] D.W. is charged with four indictable offences that are alleged to have been committed between February 1, 2014 and August 1, 2015:
- Count 1: sexually assaulting J.T., contrary to s. 271;
- Count 2: sexually interfering with J.T., contrary to s. 151;
- Count 3: inviting J.T. to sexually touch D.W., contrary to s. 152;
- Count 4: threatening J.T. with death, contrary to s. 264.1(2).
[2] Four witnesses were called at this trial: the complainant, J.T.; J.T.'s mother, C.T.; the accused, D.W.; and D.W.'s father, E.W.
[3] J.T. is currently nine years old. He was born on […], 2007. During the charge period he was predominantly seven years old. D.W. was born on […], 1995. During the charge period he was effectively 19 years old.
[4] D.W. is J.T.'s uncle. D.W.'s older brother, R.W., is J.T.'s father.
[5] D.W. is a very large man. He stands 6'5" tall and currently weighs 350 pounds. He believes that he may have been as light as 325 pounds during the timeframe of the allegations. In addition to his unusual size, D.W. also suffers from some form of intellectual deficit, although the source or nature of that condition was not identified in the evidence. While he graduated from grade 12, he did so in an applied vocational stream, as opposed to an academic stream.
[6] According to J.T.'s mother, J.T. had been diagnosed with oppositional defiance disorder at age six. In addition, J.T. had been diagnosed with an attention deficit disorder. J.T. is in a regular academic class in grade school and has progressed to the next grade in each year of his attendance. Nonetheless, he has an Independent Educational Plan as he needed particular assistance with reading and writing. He has a resource teacher's help available to him, along with the assistance of an occupational therapist, although why he would need that latter kind of assistance was not identified.
The Background Facts and the Family Constellation
[7] C.T. was separated from J.T.'s father. Despite having a poor relationship with him, she had a good relationship with his mother and father, W. and E.W., J.T.'s paternal grandparents.
[8] From February of 2014 to the end of July of 2015 J.T. and his mother lived in an apartment on B[…] Avenue. Their apartment was only a few houses away from the corner of B[…] Avenue and G[…] Street in St. Catharines, Ontario. W. and E.W. lived in a flat in a triplex at that corner, along with their son, D.W., together with a friend of the grandfather's, named D., who had his own bedroom in their home.
[9] J.T. was a fixture in the W.s' home. He would regularly walk to his grandparents' house to have breakfast before school. He would then take a lunch that his grandmother would make for him before continuing on to school. He would drop back in after school to return the food containers his grandmother used for his lunch. Then he would either stay there or return home to have supper with his mother and go to bed. J.T. sometimes slept over at his grandparents' home during the week and would do so consistently on weekends.
[10] The W.s' ground floor flat consisted of three bedrooms, a kitchen, a living-room and a washroom. The boarder, D., had his own bedroom, the grandparents shared a bedroom and D.W. also had his own bedroom. When J.T. slept over, he usually bunked out in the living-room.
[11] J.T.'s mother wanted J.T. to have a relationship with his paternal grandparents. The only direction she gave them was that she did not want D.W. being responsible for her son. She asked them not to permit D.W. to be alone with J.T. C.T. did not and could not point to anything in particular that caused her to take this approach towards D.W., but she held that attitude notwithstanding.
[12] J.T. and his mother continued to live near the W.s until August 1, 2015 when they moved to Niagara Falls. At that point C.T. began to share an apartment with J.T. and her new boyfriend, M.A. Given the distance from Niagara Falls to St. Catharines and C.T.'s lack of a car, J.T.'s weekend visits with his grandparents became less frequent.
[13] On some occasions, after the family moved to Niagara Falls, J.T. did not want to spend time at his grandparents' home. At other times he was keen to go. His grandmother reassured C.T. that J.T.'s occasional ambivalence was normal. J.T.'s visits to his grandparents' home stopped completely when J.T. disclosed to his mother and then to M.A. that D.W. had been abusing him.
The Disclosure
[14] In February of 2016, about three weeks before J.T. first made any complaint about D.W., J.T. began to take a drug to treat his attention deficit disorder. The drug was called "Concerta." After commencing to take this medication, J.T. absolutely refused to go to his grandparents' home. That refusal to visit happened on the weekend prior to him making his disclosure to his mother.
[15] The specific date and circumstances of J.T.'s disclosure to his mother or to her boyfriend were not elicited by the Crown or the defence. C.T. testified that both she and R.W. spoke to J.T.'s grandfather about J.T.'s allegations although the circumstances and substance of those meetings were also not delineated.
[16] According to J.T.'s mother, J.T.'s grandparents had some limited further contact with J.T., alone and without their son, D.W., after J.T. made his complaints but J.T.'s mother terminated any further contact by J.T.'s paternal grandparents when she came to realize that they remained supportive of D.W.
[17] J.T.'s mother made an approach to the Niagara Police Service about her son's disclosure to her. Again, the specifics of that approach were not identified in the evidence but J.T. was interviewed on camera by Detective Andrew Watson on March 3, 2016.
[18] During that interview, J.T. was unwilling to unburden himself to Detective Watson. As a result, Detective Watson ended that interview with an open invitation to come back and talk to him if and when J.T. felt that he wanted to do so. J.T., through his mother, took up that invitation and he was interviewed once again on April 7, 2016.
J.T.'s First Police Interview
[19] J.T.'s two digitally recorded statements were entered into evidence as Exhibit "1" and Exhibit "2", pursuant to s. 715.1 of the Code, on consent. The transcripts of those interviews were marked Exhibit "A" and Exhibit "B", respectively.
[20] Detective Watson tried to develop a rapport with J.T. on March 3, 2016. J.T. showed himself to be a normal and eager eight-year-old, who was initially quite responsive to the officer's questions. For example, early on in the interview Detective Watson asked J.T. what Watson's dog was named? J.T.'s response was wholly appropriate. He said, "I don't know."
[21] Eventually, Watson asked J.T. to comment on his relationship with his grandmother and grandfather and J.T. had no difficulty responding to those questions. When Watson then turned to ask about D.W., J.T. was not forthcoming. He cried and was clearly frightened to divulge whatever his complaint about D.W. was. He repeatedly stated that he was "scared" to talk about D.W. because D.W. had threatened to kill him if he disclosed what D.W. was doing to him. Subsequently, J.T. disclosed that D.W. had made this death threat on several occasions.
[22] Despite Detective Watson's efforts at reassuring J.T. that he would be safe and that J.T. could talk to him, J.T. insisted that he did not want to talk about "it" at all anymore.
[23] J.T. did not make any actionable disclosure of sexual impropriety by D.W. in this interview. However, he did say that D.W. was the person who taught him about the private body parts of a boy. Detective Watson made repeated attempts to have J.T. tell him of his complaints about D.W. but J.T. persisted in breaking down and crying. J.T. insisted that he did not want to talk about "those things that he did to me."
[24] Ultimately, before this interview ended, J.T. did say that bad things happened to him at his grandmother's home and that the bad things all happened in D.W.'s room when just D.W. and J.T. were present.
[25] Without disclosing any detail of what occurred J.T. said that D.W. would pick him up and throw him on D.W.'s bed and that no other adults were around when the bad things happened.
[26] No further substantive complaint was made by J.T. in this interview and so it was concluded by Detective Watson. J.T.'s mother brought him back to speak to Watson again on April 7, 2016.
J.T.'s Second Police Interview
[27] In this second interview, J.T., in recalling his first interview stated that he "got freaked out a little bit cause [he] got too stressed." He went on to say that he had intended to write out a note about what had happened to him so that if he got too stressed he could give the note to the detective with all of the information on it but that he had forgotten to do so.
[28] J.T. described what his uncle had done to him as "something very inappropriate" and as a "very bad thing." Something a child "shouldn't witness for a while, a long while until they're grown up."
[29] When Detective Watson asked J.T. to specify what he meant by a bad thing, J.T. ultimately said, "D.W. kind of did the same thing to him as people did to get kids made." He said that he tried to get D.W. to stop and that D.W. threatened to kill him if he told anybody about what D.W. was doing to him.
[30] J.T. was not able to identify when the first time D.W. did "it" but did say that "it was a long time ago before [he] moved to Niagara Falls." J.T. said that D.W. would do "a bad thing" to him almost every weekend when he lived near his grandparents.
[31] Detective Watson recapped the information that J.T. had divulged and asked J.T. what happened after D.W. pulled down his (i.e., D.W.'s,) pants. Once again, J.T. was unable to articulate what he alleged D.W. had done to him because he was "really scared that [D.W.] might actually kill [him]."
[32] J.T. elected to write a note for Detective Watson to tell him what had happened. With the camera running Watson left the room and J.T. took about 14 minutes to write the following note, which was filed as Exhibit "3" on this trial:
[33] The note reads: "Some times when I went to my grandmas unkl D wuold have sex with me alsoh had 80 rubr things aftr a few weeks he ended up with 03."
[34] When Detective Watson came back in and asked J.T. to read what he had written, J.T. read and said: "Sometimes when I went to my grandma's Uncle D would have, this is the part. This is the part I've been trying to keep from you, this part that. This is the part that I get frustrated about". J.T. then circled the words "sex with me".
[35] Watson then asked J.T. to explain what "sex" means. J.T. responded by explaining that D.W. had shown him pictures of dogs having sex. He went on to say that he knows what sex means … "it's when two people and, uh, when the boys sticks, um his, well, on the lady, well, it's kind of like the same thing what Uncle D did to me. He also stuck his private up my butt. I don't know why." In response to a request for clarification of what his "private" was, J.T. said, "It's what boys pee out of."
[36] J.T. said that D.W. put his penis up J.T.'s butt more than once. He explained that "for some reason" D.W. would put a rubber thing on his "private". The rubber thing looked like "a little baggie thing" and "for some reason he wore it on his private when [he] was sticking it up [J.T.'s] butt."
[37] J.T. went on to say that D.W. "sometimes he uses a weird cream thing. … It's some type of cream. He put it on his private for some reason he … tried to put it around my butt." D.W. would pin J.T. down on his bed when J.T. tried to stop D.W. J.T. described the cream as "some type of oil like Vaseline." … "It looked like a Vaseline container."
[38] J.T. described D.W.'s penis as being "all slimy" after penetrating him. He said D.W. would penetrate him, ("stick it in,") and he would "hump" J.T. J.T. described D.W.'s privates as being "for some reason it was all hairy."
[39] J.T. felt that he was being bribed with video games by D.W., as J.T. was obsessed with video games. He would enter D.W.'s room and then D.W. would lock the door so that J.T. could not get out. He said that D.W. locked his windows too. D.W. told him to stay quiet but when J.T. had to scream, D.W. made him scream into a pillow. D.W. would lock the door, throw J.T. onto the bed "and then the rest of the story starts". D.W. would pull his pants and underwear down and he would pull J.T.'s clothes off and penetrate him anally after putting a condom on and lubricating it or J.T.
[40] For the most part D.W. would throw J.T. on D.W.'s bed with J.T. facing belly down to the mattress. J.T. described trying to resist by moving but D.W. was far stronger than J.T. and so he was able to penetrate J.T. J.T. said that when D.W. penetrated him it was painful and J.T. had to scream into a pillow.
[41] J.T. said that D.W. described his penis as sad when it was flaccid. To J.T. it looked like a "hairy lump of skin." D.W. said his penis was happy when he was erect.
[42] After having sex with J.T., D.W. would shove J.T. into the bathroom. D.W. did that "cause sometimes he had (sic) babies in my bum, I don't know why."
[43] When Watson asked for clarification of this last statement, J.T. said, "Um, I don't know what they're called, but it kind of looks like weird green goo. And sometimes he asked me for a sock and so I just gave him a sock and that, that weird stuff came out [of his private] that looks like goo... as he describes as babies. … it would just start coming out as wetting the sock, but then some weird goo came through the sock."
[44] J.T. said that sometimes D.W. ejaculated in J.T.'s anus and that it made him defecate: – "Um, sometimes he had that weird goo in my bum. I don't know why, but for some reason he describes it as babies. … um, for some reason it made me have to go to the bathroom."
[45] J.T. was unable to remember the date of the first time he was attacked by D.W. but it was long before he moved to Niagara Falls and happened during the time he lived nearby his grandparents. The last time D.W. attacked him was in the week prior to his move to Niagara Falls.
[46] In addition to raping J.T. anally, J.T. described how D.W. would fellate him regularly. On some occasions, (J.T. estimated nine or ten times,) D.W. would force J.T. to commit fellatio on D.W. by forcing J.T.'s mouth open and forcing his open mouth onto D.W.'s penis.
[47] J.T. described the positions that his body and D.W.'s body would be in when these various sexual acts occurred. D.W. would kneel on the floor crouching on his hands and knees when he fellated J.T. D.W. would be sitting on the bed and would force J.T.'s mouth onto his penis when he decided to make J.T. fellate him and when D.W. buggered J.T. he would climb on the bed on his hands and knees and lower himself onto J.T.
[48] In his note to Watson, J.T. wrote of what clearly were condoms that he said D.W. possessed. J.T. told of sneaking into D.W.'s room while D.W. was out doing his paper routes. J.T. said that D.W. kept these items in a cart on wheels that was a piece of furnishing in his room. The condoms were packaged in lots of 10s and J.T. was able to count the number of packages out and multiply by 10. He said that initially D.W. had 80 but that when J.T. counted them again, a few days before he moved to Niagara Falls, D.W. only had 30 left.
D.W.'s Direct Evidence
[49] D.W. was 21 years old when he testified. He lived with his parents in their flat on G[…] Street as J.T. described. D.W. explained that he spent a number of years in grade 12 in a class split between academically streamed students and others, like him, who were in the vocational stream. His curriculum was cooking and he ultimately graduated from grade 12 with certificates for Smart Serve and diplomas for first aid and for graduating.
[50] Mr. Little confirmed with D.W. that D.W. had heard the recordings of J.T.'s interviews with Detective Watson and that D.W. had read the transcripts of those interviews. Mr. Little then asked D.W. for his response to those allegations. D.W. said J.T.'s allegations were not true.
[51] Turning then to the routine of daily life at the D.W. home D.W. confirmed and agreed with J.T.'s description of J.T.'s comings and goings as described by J.T. J.T. was there for breakfast, often there after school and would spend every weekend with D.W. and his parents. J.T.'s attendances at D.W.'s home were arranged by his mother and J.T.'s mother. D.W.'s evidence about the reduced frequency of J.T.'s weekend visits after J.T. moved to Niagara Falls, was consistent with J.T.'s mother's testimony. D.W. said that he played no part in the decisions that resulted in J.T. being a fixture at his home.
[52] D.W. described some of the routines in his home. Everything was turned off at dinner time and everyone ate at the same table at the same time. J.T. was up until 8:00 p.m. on week nights and would go to bed about 10:00 p.m. on weekends. On one occasion, about two months before J.T. disclosed his allegations, D.W. found J.T. up at about midnight and D.W. told him to go to bed.
[53] J.T. would routinely play video games in the living-room before dinner. He would come into D.W.'s bedroom to play age appropriate video games, too. He would also go into his grandmother's bedroom to use her computer to go on Facebook.
[54] When J.T. accessed that computer D.W. did not know what J.T. watched. D.W. only knew what J.T. was supposed to watch; viz., age appropriate material and not shooting or killing games.
[55] There were several gaming devices or game accessing devices in D.W.'s home when J.T. visited: a PlayStation 3; a Wii videogame console, a Game Cube and D.W.'s mother's computer. D.W. identified many of the video games that J.T. played or that he and J.T. played together by name.
[56] D.W. testified that he had a lock on his bedroom door that was removed after J.T. made his allegations known. D.W. said that the purpose of the lock was to keep J.T. out of his room when D.W. wanted to play alone or play games that J.T.'s mother did not want her son accessing.
[57] Mr. Little asked D.W. to describe J.T.'s behaviour in his home. D.W. said that on some days J.T. was rude and would not listen. On occasion he acted out by yelling or screaming or hitting. In cross-examination D.W. corrected himself and said that he never saw J.T. hitting. D.W. said that when J.T. misbehaved he would be disciplined by having to sit in a "time-out" spot but D.W. stressed that he took no part in disciplining J.T. In response to a leading question from Mr. Little, D.W. said that he was more of a friend to J.T. than an adult.
[58] While D.W. recognized that by "rubber things" J.T. was referring to condoms, D.W. denied that he ever possessed any condoms save for a sample given out in health class that he threw away at once. While D.W. had a plastic see-through storage drawer in a shelving unit in his room, he did not have any condoms and that unit did not have wheels. D.W. said he was "shocked" to hear J.T.'s allegation that D.W. possessed condoms and he had no idea where that allegation originated.
[59] D.W. also denied "bribing" J.T. He said he did not know where "the bribed part comes from." Rather, J.T. came into his room on his invitation many times and though J.T. asked to play games his mother didn't want him to play a few times, D.W. always said no to those requests. After playing games in D.W.'s room J.T. usually went to his grandmother's room to use her computer because J.T. was "allocated" time on it.
[60] D.W. said that at times J.T. would appear at or knock on his door and ask to play games and that at times D.W. would refuse to allow him to come in because D.W. was playing a shooting game. If that happened J.T. would have a tantrum and D.W. would shut the door on him and lock it. But, D.W. denied ever locking J.T. in his room.
[61] Further, D.W. denied that he was ever alone with J.T. in the house. If one adult left the house then another adult would come back in so that D.W. was never alone in the house with J.T. Moreover, D.W. insisted that he was never in his room with J.T. with the door to his bedroom being shut. If J.T. was in D.W.'s bedroom and D.W. was there, too, then D.W.'s bedroom door was open.
[62] Before closing off D.W.'s direct examination Mr. Little had D.W. reconfirm that none of the sexual assaults that J.T. described took place. Moreover, D.W. said that he never discussed sex with J.T. other than once when J.T. did ask where babies come from and D.W. told J.T. to ask his parents.
[63] Mr. Little reviewed J.T.'s evidence that J.T. knew the difference between the truth and a lie and given that evidence he asked D.W. for his reaction to what J.T. alleged. D.W. said that he believed J.T. was lying or misleading. When Mr. Little asked D.W. if he knew of any reason why J.T. would say these things, D.W. said that he did not; that he had never struck J.T., or spanked him or sat on him. The only physical event D.W. pointed to was that once, he removed J.T. from his room physically because J.T. threw a game controller after losing to D.W. So, D.W. picked J.T. up under his armpits and moved him out of the bedroom.
D.W.'s Cross-Examination Evidence
[64] Ms. Nickel suggested that D.W. had just turned 19 in […] of 1995. D.W. was not able to easily confirm that. He said that he doesn't keep track of birthdays. I inferred that he was unable to quickly do the arithmetic computation involved in determining his age at that date.
[65] Ms. Nickel took D.W. through a review of the last years of his schooling. He was in a special needs applied programme doing cooking. She also took him through his usual schedule. He got home from school about an hour before J.T. returned to the flat at 3:30 in the afternoon.
[66] D.W. denied that his mother had hearing difficulties. He said, "She does but she doesn't." He testified that his mother had a "slight" hearing problem but that his hearing is 20/20 (sic).
[67] The Crown then turned to D.W.'s knowledge about when he first learned that J.T. had made a complaint about him. He agreed that the first he knew that J.T. was making a complaint about him was when C.T. came to his home and confronted him. He believed that occurred in February of 2016. They were alone during this confrontation and no details of what C.T. said to him were elicited other than that she indicated that J.T. was alleging that D.W. had molested J.T. sexually. D.W. agreed that, "Yes, she did tell me that." He also admitted that his father spoke to him, too.
[68] Both of these conversations took place before D.W. spoke to Detective Watson on April 7, 2016. In that interview Watson asked D.W., "Do you have an idea about what those incidents are?" In response to that question D.W. answered, "No clue." Ms. Nickel suggested to D.W. that that response was not entirely correct and that D.W. did have a clue about what the Officer was there to talk to D.W. about.
[69] D.W.'s answer was, "I did but I didn't in a full extent because C.T. didn't go into great detail." Ms. Nickel then pressed D.W. on this answer noting that Detective Watson had generalized his question by asking, "Do you have a general idea?" She pointed out that despite Watson having asked this more general question D.W.'s reply was still, "No clue. All I know I was questioned and then she left."
[70] Once again, the Crown suggested that D.W. was not being completely accurate when he told Detective Watson that he had "no clue." D.W. insisted he had answered accurately: "It is accurate because of what she did. She questioned me, she asked me and then she left and that's all I know."
[71] Again, the Crown pressed on pointing out that D.W. did know that the allegations were that D.W. had sexually molested J.T. D.W. responded that C.T. did not go into depth.
[72] Ms. Nickel then turned to the subject of bribery by video games pointing out that D.W. knew before he spoke to Detective Watson that J.T. had made an allegation that D.W. had bribed him with video games. D.W. was adamant that he did not bribe anyone with video games. Ms. Nickel then asked: "Did you know about the bribing?" to which D.W. responded, "No." Again, the Crown persisted, asking, "You had no idea about this allegation of a bribe when you spoke to Watson?" And, again, D.W. said, "No."
[73] Having tied D.W. to this evidence Ms. Nickel then referred him to the passage of his police interview where D.W. said that he had bought a Nintendo DS game player for J.T. for his birthday where he went on to say, "But people are saying that it was a bribe to keep him quiet and I don't see how if it's a birthday present it could be construed as a bribe." That portion of his cross-examination continued:
Q. So you'll agree with me that you must have known …
A. No I didn't. That's what C.T. said to me, that I bribed him with it but I didn't. It was just a birthday gift.
[74] Again, the Crown persisted noting that at the time D.W. spoke to the police, he knew that J.T. had alleged he had committed a crime. D.W.'s response was, "No, [C.T.] said before she left underneath her breath, 'You bribed my son.' And I didn't and that's all and I shrugged that off because I didn't know what she meant."
[75] Ms. Nickel then rephrased his answer asking, "So then what you're saying is that she did not mention being bribed by video games?" and D.W. agreed that [C.T.] did not mention bribery by video games. At which answer Ms. Nickel pointed out that when D.W. spoke to Detective Watson D.W. specifically talked about the DS video game player. In response, D.W. said that it was his mother who had told him that C.T. was "spreading it all over Facebook [that] he bribed my son." D.W. said that he knew what his mother meant when his mother told him that C.T. had said that he had bribed J.T.
[76] Ms. Nickel then suggested to D.W. that a bribe usually refers to money but that he specified and identified the DS game player as being the bribe when he spoke to Detective Watson because he had, in fact, bribed J.T. with it. D.W. did not agree and complained that the Crown was "twisting [his] words because all that C.T. said was, 'You bribed my son' and the only thing I ever gave J.T. was the DS, so I assumed that she was meaning that."
[77] Turning to the value of the DS game player, the Crown suggested that D.W. paid $97.00 for it and that that amount was quite substantial for someone in D.W.'s financial position. Again, D.W. demurred and explained why it was not an excessive seventh birthday gift for J.T. in D.W.'s circumstances, being in receipt of ODSP and having paper routes.
[78] Madam Crown continued making similar suggestions that D.W. continued to parry. Ultimately, D.W. complained, once again, that the Crown was "twisting [his] words" and using them "out of context", concluding with the observation that his mother gave him $120.00 to repay him for a Game Cube, another Nintendo game playing system, that his mother then gave to J.T. for his use at the D.W. flat. D.W. ultimately retorted by noting that in the logic of the Crown – (though he did not characterize his analogy in those words) – "you're saying that she bribed him too!"
[79] Ms. Nickel then turned to the subject of bedroom doors and locks. She had D.W. confirm that his bedroom door was always open and never closed when J.T. was in D.W.'s bedroom with D.W. He did close his bedroom door when J.T. was not in that room with him.
[80] D.W. said his bedroom door lock was removed once J.T.'s allegations became known, but the lock had been on the door before J.T. started to come over.
[81] Ms. Nickel suggested that D.W. put the lock on his bedroom door to prevent his father from coming into his room when D.W. was not there. D.W. denied that he put the lock on his door for that purpose and D.W.'s father confirmed that his son's bedroom was equipped with a lock when the family took over the flat.
[82] D.W. denied that he locked his room to keep his father out. Rather, he locked his bedroom to keep D., (the boarder,) out while D. was alive as D.W. did not trust D. D.W. said that his father had the right to go into his room since D.W. was not paying rent to his father.
[83] D.W. agreed that he had a lot of contact with J.T. during the charge period and that D.W. viewed J.T. as a little brother.
[84] D.W.'s position was that he was never alone with J.T., that there was always one of his parents present or in earshot when D.W. and J.T. were together. If one parent left the apartment then the other would first come in. Ms. Nickel challenged that statement and suggested to D.W. that he could not know that. D.W. said that he would know because they would come in and tell him and if they were both going to be out D.W. would tell J.T. to get out of his room.
[85] Ms. Nickel asked D.W. whose idea it was to follow that arrangement. D.W. implied that it was his idea because he answered, "[he] didn't want to get into anything like this." When the Crown noted that there had not been any suggestion of inappropriate behaviour by him to prompt such a practice, D.W. said he got the idea from watching too many detective shows on television so that he knows what goes on.
[86] Among other things D.W. said, in effect, that he feared being falsely implicated because he had watched a COPS episode where the police had spliced an audio tape to fraudulently implicate an accused. D.W. said that he was concerned about being falsely accused of sexually molesting his nephew or anyone in his room.
[87] The Crown noted that "never" is a long time but D.W. insisted that there was never an occasion when he was alone with J.T. and that he "never sexually molested that child."
[88] D.W. conceded that he is able to achieve an erection.
[89] He agreed that J.T. was referring to condoms when he spoke about rubber things. D.W. knew what condoms are but stated, as he did in direct examination, that he never kept any that were given to him and threw them away because he didn't want them and he never brought any home.
[90] While he had a shelving unit in his room, it did not have wheels on it as described by J.T.
[91] D.W. continued to maintain that he was never involved in disciplining J.T. either corporally or by way of a time-out. The only incident that ever occurred was the one he described in-chief, carrying J.T. out of his room after J.T. threw a game controller. He described his relationship with J.T. as "good" unless J.T. was mad. When that happened J.T. would say, "I hate you. I wish you wasn't my uncle."
[92] D.W. said that when J.T. said things like that or was naughty he would take away J.T.'s games. In the face of that answer Ms. Nickel suggested that D.W. had contradicted himself and that he was involved in disciplining J.T. D.W.'s response was to say, "By taking away his games is discipline? My god, I must have been disciplined multiple times in my life. I don't find taking away privileges in my room is discipline."
[93] The Crown spent a little time suggesting that D.W. had admitted to threatening J.T. during the playing of a mini-game during a Mine Craft session, that D.W. described in-chief. As D.W. described that incident in-chief, that was not a death threat. D.W. testified that, that incident, aside he had never conveyed a death threat to J.T.
[94] D.W. also agreed that other than that incident, J.T. had no reason to be fearful of him.
Reply Evidence
[95] The Crown sought to call D.W.'s father in reply on the issue of whether there was a lock on D.W.'s bedroom door. The defence consented to the Crown's application and, as a result of that consent, D.W.'s father testified briefly.
[96] E.W. said that there were locks on all the doors of the flat when his family moved in. Those locks were in place while J.T. visited but they were removed one at a time over a period of time. His son did not want him going into his room and would lock the door when he left to go to school. So, he took the lock off of his son's bedroom door. He did that long before J.T. stopped coming to visit.
The Defence's Submissions
[97] Mr. Little submitted that "it is clear that [J.T.] is a bright and intuitive, engaged young man. … He knew the difference between truth and a lie and he gave his evidence in such a way that one could not be concerned about his being in a fantasy world or 'winging it' and making things up on the go."
[98] Mr. Little found it appalling that at J.T.'s age "he had the knowledge that he has and that he was able to review the situation in the detail that he does." But, and nonetheless, Mr. Little submitted that the Court ought to have concerns about a child at the age of nine recollecting what happened at the age of seven and that those concerns should preclude the court from being able to attribute the only source of that information to D.W.
[99] Mr. Little conceded that J.T. gave explicit detail about what happened to him and that there is no doubt that J.T. attributed the source of his assaults solely to D.W. Nonetheless, Mr. Little contended, in effect, that once you take into account that D.W., a 21-year-old adult, clearly and unequivocally denied being involved in the activities alleged and that he maintained his innocence despite the best efforts of the Crown, the Court ought to be left in a state of reasonable doubt about D.W.'s guilt.
[100] Mr. Little parenthetically asked how one can reconcile J.T.'s allegations with D.W.'s denials? Mr. Little reminded the Court that the issue cannot be resolved on the basis of probability or a coin-toss. The question is whether the Crown has proved its allegations beyond any reasonable doubt.
[101] Mr. Little submitted that whether likely or not D.W.'s evidence may be correct and that precludes any finding in favour of the Crown beyond a reasonable doubt. He submitted that the evidence is incapable of demonstrating proof to the requisite degree.
[102] In particular, Mr. Little stressed that the allegations are attested to by only one person and that there is no corroborative evidence concerning the assaults alleged. Mr. Little highlighted that there is no medical evidence, no physical evidence, no timely complaint, no complaint to a teacher or doctor and no "spot on a blue dress." Further, Mr. Little noted how difficult it is for an accused to prove a negative.
[103] Mr. Little urged that evidence corroborative of the offence is required, in addition to a mere statement of an allegation, for the scales to tip towards acceptance of J.T.'s evidence. While that submission is legally incorrect, I interpret it as a submission by Mr. Little that there is no basis, on the evidence adduced, to privilege J.T.'s evidence over D.W.'s. Indeed, moments after making his submission on corroboration, Mr. Little expressly submitted that "in the absence of anything determinative between the two versions it is impossible to be satisfied beyond a reasonable doubt."
[104] Mr. Little accepted that given J.T.'s age, any lack of particularity of his evidence as to time and date was of little moment. That said, Mr. Little urged that the ostensible exactitude of an 80-count of condoms does not provide any basis for the Court's decision in the face of D.W.'s denial of culpability. Likewise, the absence of any wheeled furnishing in D.W.'s room ought to raise a doubt in the Court's mind. Likewise, the presence of, the purpose of and the removal of a lock on D.W.'s door is not evidence that is determinative of anything. The existence of a lock does not denote that it was used and the use of a lock does not denote a nefarious purpose.
[105] Mr. Little concluded by submitting, once again, that there is no basis to privilege J.T.'s evidence over D.W.'s; that no propensity evidence was adduced that might cause a fact-finder to accept J.T.'s allegation rather than D.W.'s denial.
[106] While Mr. Little effectively conceded that it is clear that J.T. had been sexually assaulted he urged that what is not clear is that D.W. perpetrated those assaults. Mr. Little submitted that that lack of clarity arose not merely from D.W.'s denial of culpability but also from when it is measured against J.T.'s evidence. Returning to his theme of a lack of evidence corroborating the assault allegations, Mr. Little urged that there is no evidentiary linkage of the assaults to D.W., beyond J.T.'s bald allegations.
[107] Similarly, the death threat count fails for the same reasons. That allegation is a mere averment to be measured against a denial. While D.W. does provide a context for uttering those words once to J.T., the context demonstrates no crime occurred when he did so. Having submitted that, Mr. Little went on to note that while it is likely that some effort would be made by the actual perpetrator to silence J.T. from making any complaint, that likelihood does not assist in attributing that particular crime to D.W. beyond a reasonable doubt.
[108] While the defence concedes that someone attacked J.T. in the manner that he described it has not been proved that D.W. was the culprit and he must be acquitted.
The Crown's Submissions
[109] Ms. Nickel began her submissions by observing, (correctly in my view,) that she heard the defence concede the "what" of the allegations; that the defence had conceded the truth of J.T.'s testimony that he had been sexually assaulted. Ms. Nickel agreed and submitted that there can be no doubt that that child was sodomized repeatedly.
[110] Referring to J.T.'s demeanour in Exhibit "1" (his first s. 715.1 interview of March 2016), Ms. Nickel submitted that it is immediately apparent that J.T. was terrified that he was going to be killed for disclosing what had happened to him. Given the concession made by the defence and given the demeanour of the victim Ms. Nickel asked, "If the what is so compelling, why on earth would we doubt the who?"
[111] Ms. Nickel submits that there is no suggestion in the evidence that the identity of J.T.'s assailant could be anyone other than D.W.; that there is no reasonable doubt about who committed these crimes.
[112] Reminding me that I ought to proceed with a W.(D). analysis, Ms. Nickel submitted that when I do so I should bear R. v. Jaura, R. v. J.J.R.D., and like cases in mind.
[113] On the issue of corroboration Ms. Nickel correctly submitted that first there is no legal requirement for it; and, second, that there is a great deal of evidence corroborating J.T.'s testimony.
[114] Next, Madam Crown turned to the law respecting the assessment of evidence given by a child. Ms. Nickel submitted a child's evidence should be assessed by taking the age, abilities and life-experience of that child into account. The Crown submitted that a child's misperception of matters that were insignificant or inconsequential to the child should be discounted in assessing that child's evidence. As the Crown put it, "A child is not a small adult." I agree with this submission and note, if not the approval than at the very least, the lack of disapproval by the Court of Appeal of the trial judge's approach to a child's evidence in R. v. Cormier, 2009 ONCA 566. At paragraph [3] of that decision the Court said:
[3] The majority of the appellant's complaints about the trial judge's reasons for accepting the complainant's evidence relate to inconsistencies and contradictions in the evidence about the times, the locations and the frequency of the alleged assaults. We agree with the trial judge that these types of mistakes, when viewed in the context of all of the complainant's evidence, do not "compromise the core quality of the complaints… which ring true in their detail." We would not interfere on the basis of these types of mistakes in the complainant's evidence.
[115] The Crown asked me to bear in mind the Supreme Court of Canada's admonition that a child will perceive the world in a manner consistent with that child's age, experience and intellectual gifts. Accordingly, while a child may misperceive an inconsequential detail, such a misperception does not imply that the child has misapprehended what has happened to him or her and ought not to detract from the veracity of that child's testimony about such an event.
[116] Turning to specifics, Ms. Nickel submitted that there were aspects of D.W.'s evidence that were internally inconsistent as well as aspects of his evidence that were externally inconsistent with other evidence.
[117] The Crown began with the "door lock" evidence. E.W., the accused's father, testified that his son used the lock on his bedroom door to keep E.W. out of the room. The Crown submits that it is therefore reasonable to infer that D.W. did not want his father to see certain things in D.W.'s bedroom, namely, the condoms that he kept there. D.W.'s father's evidence about D.W.'s use of the lock to keep people out is corroborative of J.T.'s evidence that D.W. would lock him in. That the existence of this lock is corroborative of J.T.'s evidence that D.W. locked him in to ensure privacy while assaulting J.T.
[118] Next, Ms. Nickel turned to D.W.'s contention that he was never alone with J.T. without an adult in the home. The Crown submits that testimony is incredible and untrue. Likewise, the suggestion that D.W.'s parents would in essence "tag-team" each other to ensure D.W. was never alone with J.T. is equally incredible.
[119] In the same vein, the Crown submits that D.W.'s evidence that as a result of watching police reality T.V. shows D.W. formulated and carried out this prophylactic programme of never being alone with J.T., never having his bedroom door closed while J.T. was in it with him does not have the ring of truth. Given the number of occasions and the amount of time J.T. spent in his grandparents flat, it is incredible to believe that D.W. engaged in this type of avoidance behaviour on a daily basis.
[120] The Crown submits that D.W.'s professed in terrorem lifestyle is not to be credited, that it is a concocted tale and simply untrue.
[121] Turning to the area of discipline, the Crown submits that D.W.'s answers as to whether he disciplined J.T. or not were fractured by an internal and distinct contradiction. That contradiction is relevant to his lack of credibility. Additionally, the way his answers developed demonstrates that when this contradiction was put to D.W. he prevaricated and attempted to make plausible what was a clear contradiction.
[122] Challenging D.W. on the issue whether of he bribed J.T. with video games resulted in a similar attempt to wriggle out of a contradiction in his evidence. D.W. conceded that most bribes are made with money but he recognized that J.T. was obsessed with video games and used that obsession to bribe him with a gaming system.
[123] Ms. Nickel reminded me that there is a cycle of abuse which, together with J.T.'s love for his grandparents and his attraction to video games helps to explain why he kept going back to his grandparent's home.
[124] In the Crown's submission J.T.'s statement that the goo excreted by D.W.'s penis was babies is to be understood as a failure of J.T. to fully appreciate whatever it was that D.W. told him about his ejaculate. J.T.'s statement about "babies" is merely a product of some confusion on J.T.'s part about semen, though he clearly got part of the story right.
[125] D.W.'s evidence about once during a mini-game of Mine Craft making a death threat to J.T. is simply a piece of concocted and tailored testimony according to the Crown. That D.W. actually threatened to kill J.T. if he ever disclosed that D.W. was sexually assaulting J.T. is proved by what J.T. said, how he said it and how it came to be said.
[126] Finally, the Crown submits that D.W.'s statement to Detective Watson that he had "no clue" about what was being alleged against him is another piece of incredible testimony, given other admissions made by D.W.
Mr. Little's Reply
[127] Mr. Little submitted that it is unfair to characterize D.W.'s evidence as tailored, as D.W. has been living with these allegations for almost a full year. Mr. Little submits that it is not surprising that D.W. would mull the allegations over in his own mind, that he would speak with counsel and that he would prepare himself to answer questions. Some questions he could anticipate and others he could not.
[128] In these circumstances, to say that his answers were tailored, mannered or staged is an unfair characterization. Every accused is in this position and on this basis every accused would be denigrated as giving a tailored answer because they spent a year thinking of it.
[129] Mr. Little submits that the proper way to interpret D.W.'s testimony on the allegation of conveying a death threat is to understand that he wracked his brain as to where that complaint could come from and lit upon this one recollection as being the source of the complaint.
[130] Turning to other matters submitted by the Crown, Mr. Little replies as follows:
Given the Sheldon Kennedy's of this world and the prevalence of child sexual assaults in the press committed by scout leaders and coaches etc. just because someone develops a defensive position to avoid unjustly being charged is not indicative of a guilty mind;
Discipline is multifaceted. Saying no to someone is not a form of discipline. D.W. did not characterize that as a form of punishment so there was no contradiction. That is how D.W. defined it and he did so correctly. There is no contradiction. Removing J.T. from his room was not a lie or a contradiction.
The difference between a bribe and a gift may be a matter of perception. One person's view of something being received as a bribe does not foreclose the presenter's view of the matter as being a gift. Retrospective re-characterization is unfair.
The allegation made to him by J.T.'s mother was a bare allegation. So, D.W.'s evidence that he had "no clue" was not inappropriate and indeed correct.
[131] Mr. Little submitted that while J.T. gave evidence that was true to him that still does not couple the "what" with the "who." The sources of J.T.'s knowledge could be myriad, from television, to the computer to the school yard. There may well be other individuals that he was involved with that could be the party responsible for these allegations.
Reasons for Judgment
A Self-charge on the Presumption of Innocence and the Onus and Burden of Proof
[132] This is a criminal prosecution. The onus of proof lies solely on the Crown to prove the guilt of the accused to the requisite degree. That burden is proof of guilt to the exclusion of any reasonable doubt. This onus of proof never shifts from the Crown to the defence. There is no burden on the accused to prove anything. Mr. D.W. is presumed innocent and he is entitled to the benefit of that presumption of innocence unless and until that presumption of innocence is displaced by admissible evidence that proves his guilt to the exclusion of any reasonable doubt.
A Self-charge to Avoid a Forbidden Line of Reasoning
[133] In R. v. Y.M., Laskin J.A. identified an erroneous approach to cases, like this one, where the credibility of the witnesses is starkly conflicted.
This erroneous approach to the evidence and to the law causes a judge to follow a forbidden line of reasoning that fails to honour and properly apply the onus and burden of proof.
[134] In brief compass, the Appeal Court found that the trial judge in Y.M. may have engaged in the following forbidden reasoning: 'I accept the evidence of the complainant; the appellant's evidence differs from the complainant's evidence on material matters; therefore I do not believe the appellant's evidence.' (emphasis added)
[135] Justice Laskin went on to explain that "[t]his reasoning is forbidden because it appears to shift the burden of proof on to the appellant to explain away the complainant's evidence. [The] court made the same point in Strong at para. 9:
In all these circumstances, a total rejection of his evidence to the point where it did not even leave a reasonable doubt without any explanation is unsatisfactory. In these circumstances, the absence of any explanation for rejecting totally the appellant's evidence strongly suggests that he was disbelieved because the complainants were believed. This approach ignores the burden of proof.
[136] Justice Laskin went on to note that "[t]he trial judge's apparent misapplication of the burden of proof [was] closely tied to a … misapplication of the principles underlying W.(D.)." In lieu of attempting to paraphrase Justice Laskin's succeeding paragraphs I shall simply quote paragraphs [32] to [35] here:
32 In W.(D.) at 758 Cory J. prescribed a three step formula for assessing credibility.
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
The recitation of this formula has become commonplace in trial reasons. What an appellate court looks for, however, is not its mere recitation but its application.
33 This court has said more than once that trial judges are not required to apply W.(D.) in the order prescribed by Cory J., or even to use his exact words. The structure of the judgment or rhetorical consideration may dictate a different order or different language. But when assessing credibility trial judges should reflect W.(D.)'s underlying principles.
34 One principle - relevant in this case - is that trial judges must show they have considered W.(D.)'s middle ground: whether the defence evidence in the context of the evidence as a whole leaves the trier of fact with a reasonable doubt. Rosenberg J.A. discussed this point in the recent case of R. v. Minuskin at para. 22:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 743, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".
35 Here, the trial judge did not expressly address the second step or middle ground in W.(D.). As she had on the Sheppard submission, the summary conviction appeal court judge concluded that the trial judge's failure to do so was not fatal. Again, I take a different view. The trial judge summarily rejected the appellant's denials solely, apparently, because he accepted the complainant's evidence. However, this is not a case where the mere acceptance of the complainant's evidence inevitably meant that the accused had to be found guilty. And I am not satisfied that the trial judge considered whether the defence evidence, though not accepted, nonetheless raised a reasonable doubt. (emphasis added)
[136] Accordingly, I instruct myself to avoid that forbidden line of reasoning. I shall not approach this case by saying to myself, as the trier of fact, that if I accept the evidence of the complainant I must therefore reject the evidence of the defendant. This forbidden line of reasoning fails to honour the presumption of innocence and the burden of proof and insidiously shifts the burden of proof onto the defendant to explain away the complainant's evidence.
[137] On the other hand, I am not to require the prosecutor to meet an unlawful burden that demands corroboration where the law does not require it. I charge myself in accordance with the governing principles as set out above and with the principles explained in R. v. Jaura, R. v. J.J.R.D., R. v. H.C., R. v. Hull, R. v. G.C., R. v. Holley.
[138] More particularly, at paragraph [5] of Hull, our Court of Appeal clarified and to some extent thereby rationalized the Y.M. principle with Jaura and J.J.R.D. in the following words:
W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[139] I am also mindful of the need for care and caution where the case for the Crown is carried substantially, if not completely, by one witness. Additionally, I find useful guidance in the decision of Mr. Justice Quinn in R. v. M.J.B., [1999] O.J. No. 2235 (S.C.O.).
Corroboration
[140] Corroboration, "as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the evidence of the challenged witness." (R. v. Bo Zou, 2017 ONCA 90 at para. [40].)
[141] It has long since been the law that no corroboration of a child's evidence is required for a conviction for sexual offences. Hence, I need not instruct myself, as fact-finder, that it is unsafe to find the accused guilty in the absence of corroboration. Nonetheless, where corroborative evidence has been led and where it has been accepted by a fact-finder, a fact-finder may be more inclined believe a child's evidence in the light of such corroboration. Where there is evidence which is capable of corroborating or confirming a child's evidence, it is up to the fact-finder to decide whether that evidence does, in fact, corroborate or confirm the child's evidence.
[142] I note further that corroborative evidence need not be corroborative of a material particular of the offences charged. Rather, evidence is corroborative if the evidence of the complainant which implicates the accused is corroborated in a material particular by other independent testimony. (See R. v. G.B., [1990] S.C.J. No. 59 (S.C.C.) at paragraph [53].)
Some Principles Dealing With Demeanour
[143] The demeanour of an accused while testifying in a criminal trial can vary enormously due to any number of factors. Judges have repeatedly been warned against attempting to link credibility with a subjective judicial assessment of demeanour. (See, for example R. v. T.E., 2007 ONCA 891 at para. [4].)
[144] That said, a court need not ignore the question of demeanour. As the Court of Appeal stated in R. v. Boyce at para. [3]: "trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial." More recently, in R. v. Santhosh, 2016 ONCA 731 at para. [19], the Court of Appeal confirmed that "a trial judge may assess a witness' demeanour, which, while relevant to the assessment of credibility, is not determinative of the witness' credibility and must not be overemphasized."
[145] Moreover, as noted in R. v. J.A., 2010 ONCA 491 at para. [16], it is not inappropriate to assess and weigh evidence relating to the post-event emotional state of a complainant. That type of evidence was described by the Ontario Court of Appeal in R. v. Varcoe, 2007 ONCA 194, 219 C.C.C. (3d) 397, at para. 33:
K.F.'s emotional upset was manifest the day following the assault; it was apparent to and noted by her family. Such evidence is admissible and may be used to support a complainant's evidence of a sexual assault. See R. v. Boss, 46 C.C.C. (3d) 523 (Ont. C.A.). The weight to be given this properly admissible evidence was exclusively a matter for the trial judge's discretion.
[146] In this case, the Crown relies upon the emotional state of J.T. during his two police interviews in the spring of 2016 many, many months after the last assault of which complaint is made. Notwithstanding this extensive passage of time, in the particular circumstances of this case, given J.T.'s professed fear of being killed should he disclose his complaints, I am of the view that J.T.'s demeanour in the interviews is a proper matter to take into account in assessing his evidence.
[147] Following R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), at 409 I have charged myself that if I believe D.W. when he denies having committed any of the offences with which he is charged I must acquit him. I do not believe his denials.
[148] Since I do not believe the denials of D.W. I must ask myself if I am left in a state of reasonable doubt about his guilt by virtue of his evidence or as a result of the other evidence called or elicited by either side. I am not left in a state of reasonable doubt by the evidence of his denials and I reject that testimony. Moreover, I am not left in a state of reasonable doubt about his guilt by virtue of the other evidence elicited in this trial.
[149] I note at this point that in many respects D.W.'s evidence was corroborated by the evidence of J.T.'s mother, C.T., in the same way that her evidence and much of D.W.'s evidence was corroborative of the evidence of J.T.
[150] Notwithstanding the corroborative effect of C.T.'s evidence I reject the denials of D.W. Given my rejection of those denials and my rejection of his evidence in support of those denials – (for example, that he was never alone with J.T., that his bedroom door was always open when J.T. was in it with him and that one or the other of his parents was always home so that he was never alone with J.T.) – that evidence does not remain in my mind to cause me to have a reasonable doubt about D.W.'s guilt. So, I do not find him not guilty on an application of the second prong of W.D. since, I am of the view that there are aspects of his evidence that are inherently unreliable or incredible.
[151] I agree with the submission of Ms. Nickel that D.W.'s evidence that he had "no clue" about the allegations was not true. He knew that J.T. had made allegations that he had sexually assaulted J.T.
[152] D.W.'s evidence that he did not know where the allegation that he bribed J.T. came from is also not believable in light of his admissions about what C.T. said to him.
[153] I simply do not accept D.W.'s statement that he was never home alone with J.T. Given the number of occasions when J.T. spent time at the D.W. flat and given the extent of his tenure there, that evidence from D.W. does not bear crediting. Equally, I find his evidence that before one parent left the home the other would come in and confirm to D.W. that he and J.T. were not alone together is simply not believable. It does not accord with common sense or normal experience. Similarly and for like reasons, I do not accept his evidence that when he and J.T. were together in his room his bedroom door was always open.
[154] It strikes me that this child was a fixture in the D.W. household and that video-games were a major source of entertainment in that home. Both J.T. and D.W. said that they would often be in D.W.'s room playing games. That these two would be together in the same room would not be unusual occurrence or a matter of comment or concern in that home.
[155] Likewise, D.W.'s testimony that he kept his door open and was never alone with J.T. as part of some pre-emptive policy effected to insure that he would never wrongly be accused of sexually assaulting anyone, including J.T., is not worthy of belief. In coming to this conclusion I have not forgotten or ignored that J.T.'s mother's evidence that while she had no reason to fear any wrongdoing on D.W.'s part she asked his mother not to permit D.W. to be alone with J.T. There was no evidence from D.W.'s mother or his father that either of them acted on J.T.'s mother's request. D.W.'s evidence was that it was his decision to take pro-active steps to ensure that he was never in the same room with J.T. with the door closed and that he told J.T. to leave the bedroom if his parents both went out of the apartment.
[156] I reject D.W.'s evidence that on one occasion in one particular circumstance during a video-game session while playing with J.T. he told J.T. that he, (D.W.,) was going to kill J.T. and that he did so only after J.T. said the he was going to kill D.W. That utterance in those circumstances could never have caused J.T. to make the death threat complaint that he made. Nor could that statement in those circumstances have caused J.T. to exhibit the fear that he did of D.W. J.T. was not frightened by jocular joshing. Despite Mr. Little's reply submissions I am of the view that that evidence was both tailored and mannered to meet J.T.'s death threat allegation.
[157] In assessing and weighing D.W.'s testimony in this way I want to make it clear that I have considered D.W.'s evidence while taking J.T.'s, C.T.'s and E.W.'s evidence into account. Not, I should be quick to note, on the basis of a "credibility contest" in which I prefer J.T.'s evidence to D.W.'s. Rather, I assess D.W.'s testimony in light of the whole evidence, including the testimony of the complainant and the other witnesses. In carrying out this comparative assessment I recognize that one possible outcome of my assessment is that I may be left with a reasonable doubt concerning the guilt of the accused despite not accepting his evidence. Having done so, however, I reject the evidence of D.W.'s denials and his evidence of never being alone with J.T. and never being in his bedroom with J.T. with the door closed. I am not left with any reasonable doubt about the guilt of D.W. based upon D.W.'s evidence.
[158] As I do not believe and reject D.W.'s denials of wrongdoing, I must go on to ask myself whether, based on the evidence that I do accept, the Crown has proved the guilt of the defendant to the exclusion of any reasonable doubt? The short answer is that it has and I find the defendant guilty on all counts.
[159] In my view, J.T. is a young boy who testified in an open manner consistent with his age. He possesses some child-like qualities that were apparent in his demeanour and in his evidence. I have taken those qualities into account in assessing his credibility and reliability, as I am obliged to do. As the Supreme Court said in R. v. W.(R.) (2000), 74 C.C.C. (3d) 134 (S.C.C.) at [144]: "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."
[160] I believe and accept the J.T.'s testimony that he was anally raped by D.W. as he described and that he was fellated by D.W. and that D.W. forced J.T. to fellate him. I accept his evidence that these acts occurred repeatedly in D.W.'s bedroom, while the bedroom door was closed. I accept J.T.'s evidence that D.W. obtained J.T.'s silence by threatening him with death. In my view, it is apparent that D.W.'s death threat continued to silence J.T. even after he first disclosed to his mother. The effect of J.T.'s fear of D.W. is still clearly apparent during his first police interview on March 3, 2016.
[161] I find that J.T. answered questions in a direct, concrete and guileless fashion and that his evidence was unsophisticated, unexaggerated and ungilded. What he said rang true to me. Further, much of the surrounding circumstances, which gave D.W. the means and opportunity to assault J.T., were corroborated by the evidence given by J.T.'s mother, E.W. and D.W., himself.
[162] Both counsel submitted that this child was credible. Mr. Little, quite responsibly, did not suggest that how J.T. gave his evidence and what he said was incredible and unbelievable. Further, Mr. Little effectively conceded that J.T. had been sexually assaulted in the manner that J.T. described. It is a testament to J.T.'s credibility that his evidence had that effect. That J.T., at his age, had been subjected to the experiences that he described is, as Mr. Little noted, appalling.
[162] Contrary to Mr. Little's submissions, and despite the very high test to be met to achieve proof to the exclusion of any reasonable doubt, there are reasons to reject D.W.'s evidence. The major one of those reasons is the incredibly compelling and credible evidence given by J.T.
[164] Finally, in R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029 (Ont. C.A.) at [19] the Court held that evidence suggesting the absence of any reason to make a false allegation "is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility" referring to R. v. Batte (2000), 49 O.R. (3d) 321 (Ont. C.A.) at [120]:
Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility.
That is applicable in this case. I see no motive for J.T. to create false allegations against D.W. That said, I have specifically cautioned myself in the terms required by paragraph [53] of L.L. cited above, as required and confirmed by R. v. M.B., [2011] O.J. No. 428 (C.A.) at paras. [30] to [32].
[165] I have honoured and applied the onus and burden of proof. I have considered whether I entertain a reasonable doubt about D.W.'s guilt, despite not believing his denials. In doing so, I have considered his evidence in the context of the evidence as a whole, leaving open the possibility that I might still harbour a reasonable doubt about his guilt, despite not accepting his evidence. I do not have a reasonable doubt about the guilt of D.W. On the evidence that I do accept, I find that the Crown has proved its allegations to the exclusion of any reasonable doubt. I am satisfied to the exclusion of any reasonable doubt that D.W. is guilty of all of the crimes with which he is charged.
[166] Accordingly, I find D.W. guilty of counts one to four inclusive. I will hear counsel on R. v. Kienapple, subsequently.
Dated at St. Catharines this 17th day of February 2017
J.S. Nadel, O.C.J.