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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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: January 27, 2017

Court File No.: Ottawa 15-SA5101

Between:

Her Majesty the Queen

— and —

M.A.G.

Before: Justice P. K. Doody

Heard on: December 14, 15, and 16, 2016

Reasons for Judgment released on: January 27, 2017

Counsel:

R. Tallim — counsel for the Crown

R. Guertin — counsel for the defendant

DOODY J.:

Part 1: Overview

[1] The defendant is charged with sexually assaulting and sexually touching the complainant, who was then 13 years old, on December 16, 2009, contrary to s. 151 and s. 271(1) of the Criminal Code.

[2] At the time of the alleged assault, the defendant was in a relationship with the complainant's mother, but did not live with her.

[3] The complainant lived with her mother one week and with her father (from whom her mother was separated or divorced) the following week. The complainant's mother had a two bedroom apartment, with one bedroom being used by her and the other by the complainant.

[4] The apartment was one of six in a three storey building. Visitors seeking admittance to an apartment buzzed the occupants from the front foyer, and the occupants then had to leave their apartment, go to the front door of the building, and let them in.

[5] The complainant had a half-brother, her mother's son, who was 20 years old in 2009 and did not live with them.

[6] The complainant was suffering from the flu the week of the alleged assault. She stayed home from school on Tuesday, December 15. Her mother told her that the defendant would be coming over to the apartment that afternoon before she finished work.

[7] On the following day, Wednesday December 16, 2009, the complainant was still feeling unwell. She went to school, however, because there was to be a Christmas party at school and she had offered to take some baked goods for the party. She was told by her mother that the defendant would again be coming over to the apartment after she got home from school that day and that her brother would be coming over as well. She took the bus home from school and arrived at about 3:30 p.m.

[8] The complainant testified that on the Tuesday, the defendant came over around 3:00 p.m. After he got there, she was sitting on the couch in her pajamas, using her mother's laptop computer which was on an end table beside the couch. She said that the defendant sat down beside her and massaged her on the shoulders. His hands went under her shirt but stayed on her shoulder.

[9] The complainant testified that the next day, she got home from school around 3:30 p.m. She changed into her pajamas and, looking out the window, saw the defendant's car arriving. She went downstairs to let him in at the front door of the building. They entered the apartment and she resumed her position sitting on the couch, using her mother's laptop. Her brother was not there. She said that the defendant changed in her mother's bedroom from his jeans into sweatpants, saying that he wanted to be more comfortable.

[10] She testified that when he came out of the bedroom, he sat beside her on the couch. He began to massage her shoulders again. He then led her to lie down on the couch – he started lying down and she went with him, not saying anything. She said that she was facing him with her head approximately in his chest – explaining that even though she was a couple of inches taller than him she did not want to be face to face so she moved her head lower. He wrapped his leg around her and started grinding against her. She wrapped her leg around his, putting one of her legs between his.

[11] She testified that the defendant then put his hand under her pajama bottoms and grabbed her buttocks, squeezing and pulling her closer as he was grinding against her. His hand was on her bare buttocks. She testified that he took his hand from her buttocks and went inside her shirt and touched her breast for a couple of seconds. He then put his hand back on her buttocks and continued to grind against her. She could feel him getting an erection.

[12] She testified that she was scared and did not really understand what was happening so just went along with it. She said that she thought she could trust him so just went along with what he was doing.

[13] It was her evidence that this lasted "probably for a couple of minutes" and then she said that she had to go to the bathroom. She went to her mother's room and grabbed her bathrobe. After a couple of minutes, she went out and sat on the loveseat, waiting for her brother who she knew was coming. She estimated that ten to fifteen minutes had passed from the time he had started massaging her back until she left saying that she needed to go to the bathroom.

[14] The defendant denied touching the complainant on either day. He acknowledged having been asked by the complainant's mother to come over those days to check on the complainant, but said that he sat beside her on the couch on both days and did not have any physical contact with the complainant.

Part 2: How I am required to decide this case

[15] It is my duty to determine whether the Crown has proven beyond a reasonable doubt that the defendant is guilty of the crimes with which he is charged.

[16] If the defendant's evidence is accurate, he is not guilty of these charges. I must make my decision in the following way to ensure that I pay proper attention to the requirement that the Crown must prove each charge beyond a reasonable doubt.

[17] If, after considering all of the evidence, I accept that the defendant's evidence is true, I must acquit him.

[18] If, on all of the evidence, I cannot accept that the defendant's evidence is true, but I have a reasonable doubt as to whether it is true, I will be unsure and must acquit him.

[19] If I have no doubt that the defendant's evidence is not true, I cannot use the fact that I do not believe him as a reason to find him guilty. What I must do is carefully analyze the rest of the evidence in order to decide whether the Crown has proven beyond a reasonable doubt that the defendant is guilty of each charge.

[20] I am not allowed to make my decision on the basis of which person's evidence I prefer as being more likely to be true – if I did that, I would not be giving the defendant the benefit of the requirement that the Crown must prove each charge beyond a reasonable doubt, as I must do.

[21] I propose to set out, for the evidence of each of the defendant and the complainant in turn, things that may assist in my determination of whether that evidence was given honestly – whether the witness believed it to be true – and whether it is reliable – whether the witness was in a position to accurately see, remember, and describe what he or she saw and what occurred. I will then explain my conclusion.

Part 3: Evidence relevant to the credibility of the defendant

(a) The length of time the defendant was alone with the complainant

[22] It was the defendant's position that he knew he would be at the apartment only a few minutes on each of Dec. 15 and Dec. 16 before the complainant's mother or brother arrived, so that it was extremely unlikely that he could or would have done anything of the sort described by the complainant on either day.

(i) What the complainant's mother told the defendant about why she wanted him to go to the apartment

[23] The defendant testified that he received a telephone call from the complainant's mother on Tuesday December 15 advising him that the complainant was home sick. She asked him to go check on the complainant. He replied that, as she knew, he was on a strict regime of body building under which he went to the gym at 2:00 o'clock every day, worked out, showered and ate, which could not be varied. Consequently, he would not be able to be there until 3:30. He testified that he agreed to do so, although he did not see the point, because the complainant's mother worked until 3:30 every day and she was only a 5 or 10 minute drive from home. He said that he arrived at the apartment at 3:30 or so, and the defendant's mother was there within 10 minutes.

[24] The defendant testified that on December 16 he was called by the complainant's mother to say that her daughter would be home from school around 3:30 and she wanted him to go over to the apartment again that day. It was his evidence that she told him that she realized that they would meet up at the apartment and she would try to get there before him but "I would like you to be there just to check up on her". The defendant testified that he said "I will try to get there before you but I don't know that I will." He also testified that she knew he could not be there until after 3:30 and that she expected to be there around 3:35 or 3:45.

[25] The complainant testified that on December 15 she was sick with the flu. Her mother called her and told her that the defendant would be coming over around 3:00 p.m. to see how she was doing. She said that on December 16 she arrived home at around 3:30 p.m. and had been told by her mother that the defendant was coming over again.

[26] The complainant's mother testified that she had told the defendant that the complainant was home sick and she would like him to keep her company, saying she would see him at home after she got off work.

(ii) Complainant's mother's hours of work and travel time to home

[27] The three witnesses gave different evidence on the hours that the complainant's mother worked and where she worked (and how far that was from the apartment) in December 2009.

[28] The defendant testified that the complainant's mother worked until 3:30 p.m. and worked at a location very close to the apartment, just a five minute drive down M[…] Road.

[29] The complainant testified in examination in chief that her mother worked from 8:00 a.m. to 5:00 p.m. but that she could be wrong. In cross-examination, she said that she "probably worked till 3:30" but could not recall exactly.

[30] The complainant's mother testified in examination in chief that she may have worked from 8:30 to 4:30 but could not recall exactly. She also testified in examination in chief that she worked downtown, and that if she left work at 4:30 she would have arrived home at 5:00 or shortly thereafter.

[31] In cross-examination it was put to her that in December 2009 she had worked for a property management company at Merivale and Baseline, not downtown. She agreed. She also agreed that her place of work was a five minute drive from her apartment, saying that when she was asked that in examination in chief she could not recall where she was working at the time. It was then put to her that she worked from 8:00 to 3:30 and she said she could not recall.

[32] It was then put to her that when the defendant was "going ahead to your place you expected to be after him but not very much after him does that make sense?" to which she replied "yes". It was then suggested to her that the plan was that she would be there in 10 minutes maximum after leaving work and they would both arrive at her apartment at the same time. The complainant's mother did not agree with this suggestion, saying she could not recall.

(iii) When complainant's mother and brother arrived at the apartment

[33] The defendant testified that he arrived at the apartment at 3:30 or 3:35 on December 15, and the complainant's mother arrived "moments after". It was his evidence that he arrived at the same time on the 16th, with the complainant's brother arriving at almost exactly the same time as him and the complainant's mother arriving within ten minutes.

[34] The complainant testified in examination in chief that her mother arrived home about an hour or so after the defendant on December 15 – i.e. around 4:00 p.m. In cross-examination, it was put to her that on that day her mother arrived within 15 minutes of the defendant. She responded that she could not remember.

[35] It was her evidence during examination in chief that the defendant arrived around 4:00 p.m. on the 16th, her brother arrived 5 or 10 minutes after the incident (and she had to go downstairs to let him in), and her mother arrived a little after 5:00 p.m. In cross-examination, it was put to her that her brother arrived 10 or 12 minutes after the defendant. She could not recall. It was then put to her that her mother arrived "shortly thereafter" (meaning shortly after her brother arrived). She agreed.

[36] The complainant's mother did not testify as to when she arrived, other than that in examination in chief she said that if she had left work at 4:30 she would have arrived home at 5:00 or 5:15. This was on her assumption that she was working downtown at the time. Given her admission in cross-examination that she was working only a 5 minute drive from her apartment in December 2009, this evidence cannot be relied upon.

[37] The complainant's mother was not asked in cross-examination when she arrived at the apartment on either day. She was only asked about her planned time of arrival, as outlined in the preceding section of these reasons.

(b) Inconsistent evidence about telephone call from complainant's mother Dec. 16

[38] In cross-examination, it was put to the defendant that it made no sense for the complainant's mother to ask him to check up on the complainant if she was going to be there before him or within a few minutes of his arriving. The defendant agreed. He then changed his evidence to say that the purpose of the call from the complainant's mother was to invite him for dinner, and that the request to look in on the complainant was just an "element" of the call.

(c) Evidence of argument between the complainant and her brother

[39] In cross-examination, the defendant acknowledged that, as the complainant's mother had testified, the complainant was in the bedroom when her mother arrived home, and that when she went into the bedroom to speak with her, the complainant was clearly upset. He explained this by testifying that when the complainant's brother arrived, the complainant was using her mother's laptop. Her brother immediately went and grabbed the laptop away from her. This led to them swearing at each other and the complainant going to the bedroom. When dinner was served, the complainant was not present.

[40] Despite this benign explanation for what the defendant described as the clear tension in the apartment that evening, he testified that he never told the complainant's mother that this was the reason.

(d) Evidence of admission by defendant that he touched the complainant

[41] The complainant's mother testified that it was clear to her that the complainant was very troubled when she (the mother) arrived home on December 16. A day or two later, she, her daughter, and the defendant went to dinner. She said that her daughter was obviously uncomfortable throughout the dinner. Her mood did not improve. She tried to gently push her to find out what was bothering her.

[42] Shortly after the dinner, she testified that she was driving with her daughter in the car and the complainant asked her to pull over at a pizza restaurant parking lot. Her daughter was obviously uncomfortable. She told her that something had happened between her and the defendant. When her mother asked her to tell her what had happened, she said that he had touched her bum. Her mother asked her what she meant by that, and the complainant told her that he tapped her on the bum and touched her bum. Her mother testified that when she pushed her daughter for more details she started closing down.

[43] The complainant gave similar evidence, although she testified that the conversation took place the night of the dinner and was in her mother's bedroom. She testified that she was scared to go into details but she told her mother that the defendant had touched her butt and made her feel uncomfortable.

[44] The complainant's mother testified that a short time later, she spoke with the defendant. She testified that she remembered being very angry with him, saying "I can't believe that you would do this to me and to my daughter."

[45] She testified that the defendant claimed it was all a misunderstanding. It was her evidence that the defendant told her that he had tapped the complainant in a playful gesture on the buttocks.

[46] In cross-examination, the defendant denied having told the complainant's mother that he had tapped the complainant in this way. He admitted that the complainant's mother had confronted him with the accusation that he "touched her bum". It was his evidence, however, that he told her that that was absurd, that he never touched her, and that she knew he never touched her. In further cross-examination, he testified, in response to the assertion that he had heard the evidence that he had admitted to the complainant's mother that he had accidentally touched the complainant's bum, "I never said that. That never happened."

[47] The complainant's mother was not cross-examined on her evidence about the statement. It was not put to her that the defendant denied any physical contact or that the defendant had responded to the accusation in the way to which he had testified.

[48] All three witnesses testified that the complainant's mother broke up with the defendant shortly after December 16, 2009. In the spring of 2010, however, she rekindled the relationship without telling the complainant. The complainant confirmed that she was unaware of the resumption of the relationship. The complainant's mother testified that she did not have a good reason for doing this, except that she cared for the defendant, she did not know the full extent of what had happened and even though she knew something wrong had occurred she believed that it was not as severe as she later learned. This is consistent with the defendant having told her that although he touched her daughter on the buttocks, it was by way of a playful gesture which was misunderstood.

Part 4: Evidence relevant to the credibility of the complainant

(a) Demeanor of the complainant while testifying

[49] Demeanor is not a very reliable gauge of the credibility of a witness. Nevertheless, to the extent that demeanor is relevant, the complainant gave her evidence in a very straightforward manner. Defence counsel probed her evidence, and asked her questions (in a way which was quite appropriate) about intimate details of her evidence. She did not lose her composure and appeared to be quite calm and collected.

[50] Nor was she shaken significantly in cross-examination.

(b) Emotional state of the complainant after alleged assault

[51] The complainant's mother testified that when she arrived at the apartment on Dec. 16, the complainant was in her room. She went in to speak to her. She testified that her daughter was very quiet. She could tell something was wrong. She told her mother that she was not feeling well and wanted to be left alone. She did not join the family for dinner that night. She clearly did not want to talk about what was bothering her.

(c) Evidence about whether the defendant had sweatpants at the apartment to change into

[52] The complainant testified that the defendant went into her mother's bedroom and changed from jeans into sweatpants after arriving at the apartment on Dec. 16, before he sat down with her on the couch. The defendant testified that he left no clothes at the complainant's mother's apartment.

[53] The complainant's mother testified that while the defendant did not have a separate drawer at her apartment for him to leave his clothes in, he did occasionally leave a sweatshirt there. In cross-examination, the defendant admitted that it would not be unusual for him to have a gym bag at the apartment with a change of clothes in it, but only on the weekend, never during the week. Both the complainant's mother and the defendant testified, however, that he slept over occasionally during the week. Dec. 16, 2009 was a Wednesday.

(d) Evidence of prior inconsistent statements of the complainant

[54] The complainant gave a recorded statement to the police on June 9, 2010. Some of the things she said in that statement were inconsistent with the evidence she gave at the trial. The examples below are what defence counsel pressed most strongly.

(i) Circumstances of the statement

[55] The complainant testified that, after she had told her mother that the defendant had touched her buttocks, she went with her mother to her physician for a physical. Her mother told the doctor what she had told her mother. The doctor told both of them that she was obliged to report the allegation of abuse to the authorities if they did not do so. She discussed this with her parents afterwards, and they decided that she (the complainant) should go to the police station and report what the defendant had done.

[56] Consequently, she went to the police station with her parents and spoke with a police officer. The conversation was recorded.

[57] The complainant testified that she did not want to be there. She was not ready to press charges or even think about what had happened. She said that she just wanted to put it behind her. It was her evidence that she was not ready to give all the details to the police officer. She said she was "just terrified" at the time about what would happen if she did end up pressing charges. She really wanted to ignore what had happened and pretend it had never happened.

(ii) Whether she felt the defendant becoming erect

[58] The complainant testified that, while the defendant was grinding against her, she could feel him getting an erection. During the 2010 statement (when she was 13 years old), she gave the following answers to these questions:

Q. Okay. And do you remember if he had an erection?

A. No.

Q. Okay. Do you know what an erection is?

A. No.

Q. You don't know what an erection is. Okay. An erection it's when the penis is hard. So when the penis becomes erected it becomes hard and that's when you see the bulge, do you know what I mean?

A. Yeah. But he did not have that.

[59] When confronted with this inconsistency, the complainant testified that she did not understand what the officer meant when she explained what an erection was. She did not want to be there and she wanted to give minimal detail.

(iii) Whether he touched her breasts and private parts

[60] The complainant testified that the defendant touched her breasts. During the statement, she was asked if he had touched her breasts, and she said "no - never." She also testified that he touched her buttocks. During the statement she said he had never touched her private parts.

[61] When asked to explain the discrepancy, she had no specific explanation for denying that he had touched her breasts.

[62] She said, however, in respect of her statement that he had never touched her private parts, that although he had touched her bum (as she said in evidence and in the statement), he had "never touched my bum down there" and "I could feel him through my pants but no clothes came off." In my view, the denial in the statement that he had touched her private parts was not inconsistent with her evidence at trial.

(iv) Whether she was sitting or lying on the couch

[63] The complainant testified that she was sitting on the couch when the defendant sat down beside her and began to massage her shoulders. In the 2010 statement, she said she was lying on the couch when she was using her mother's laptop. When the discrepancy was put to her, the complainant testified that her evidence at trial was accurate. She said she did not know why she had said that she was lying on the couch when she gave her 2010 statement.

(v) Whether she was afraid of the defendant

[64] The complainant testified that she did not want to press charges and was scared of the defendant. In her 2010 statement, she said that the defendant "always just seemed really nice". When confronted with this discrepancy, the complainant said that when she said that in the statement, she was referring to how she viewed him before the assault. That is apparent from the context of the section of the statement put to the complainant.

(vi) Whether anything happened on Dec. 15

[65] The complainant testified that, as set out above, the defendant gave her a shoulder massage on Dec. 15, the day before the alleged sexual assault. The officer interviewing her in 2010, when she said that the defendant had been in the apartment alone with her on Dec. 15, asked "Did anything happen that day?" The respondent shook her head, indicating "no". The complainant testified that she did not tell him about the shoulder massage because she did not want to be there and wanted to get out as soon as possible.

(e) Explanation for the late reporting of the allegation to the police

[66] The complainant testified that she reported the assault, with full details, to the police in 2015. She said she had been talking about it for a while with her boyfriend and decided that she was "finally ready and in a good enough place to come forward and make my statement". At that point, she was 18 years old and had finished her first year at college. At the time of the incident, she was 13 years old, still in grade school, and had been forced by her parents and her doctor to report it to the police. Her situation was entirely different five years later.

Part 5: Analysis

[67] I have carefully considered all of the evidence, from all three witnesses. I conclude that I do not believe the evidence of the defendant.

[68] I reach that conclusion for a number of reasons.

[69] Defence counsel placed much weight on the assertion that it would have been extremely unlikely for the defendant to assault the complainant on the couch when her mother or brother was likely to have arrived at any minute. That argument is meritless in respect of the brother, because on the evidence, he did not have a key and could not have barged in to the apartment.

[70] In respect of the mother, the argument rests on the defendant's evidence that the mother worked until 3:30 at a location which was a five minute drive from the apartment. The evidence as to the time of the mother finishing work was not corroborated by anyone. Both the complainant and the mother said they could not recall when she finished work. Although the complainant's mother did agree with defence counsel in cross-examination that her plan was that she would be at the apartment "after him but not very much after him" she did not agree with his suggestion that the plan was that they would both arrive at her apartment at the same time.

[71] More importantly, both the mother and the defendant gave the same evidence as to why she asked him to go over to the apartment. The defendant said that she had asked him to "check up on her" and the mother said she asked him to "keep her company". As the defendant agreed in cross-examination, it would make no sense to ask him to do this if her mother was going to arrive at almost the same time as the defendant. All the witnesses agreed that these two days were the only days that the complainant's mother had ever asked him to go to the apartment to stay with the complainant.

[72] The defendant recognized the incongruity of his position when this was put to him in cross-examination. This led him to change his evidence so that the main reason the complainant's mother had called him on the 16th was to invite him for dinner. In my view, that was an attempt to backfill what had become a hole in his evidence.

[73] I find that the mother did ask the defendant to go over to the apartment on both Dec. 15 and 16 because she knew that she would not be there as soon as the defendant would be. There is no other rational reason why she would ask him to do that. Consequently, the defendant could reasonably believe that he would have some time to engage with the complainant.

[74] I do not accept the defendant's evidence that the reason for the complainant being upset after her mother arrived on Dec. 16 was the fight over the computer with her brother. If that was the cause of the problem, the only reasonable thing for the defendant to have done, given that the complainant's mother was clearly concerned about the unusual behavior of her daughter, was for him to have told her – if not while the complainant's brother was there that evening, as soon after he left as possible. Yet he did not.

[75] I accept the evidence of the complainant's mother that the defendant admitted touching the complainant on the buttocks, albeit by tapping her in a "playful gesture". This description, being milder than that given by the complainant, explains why the complainant's mother felt she had a basis to conclude that what happened was not as bad as the complainant had described, justifying the resumption of her relationship with the defendant.

[76] I am assisted somewhat in this conclusion by the failure of defence counsel to put to the complainant's mother the defendant's description of what he had said when she confronted him with the accusation of the complainant – that "I never said that. That never happened." This was contrary to the rule in Browne v. Dunn.

[77] The rule in Browne v. Dunn requires that, where a party intends to introduce evidence which contradicts an opposing witness on matters which are central or significant, the opposing witness must be given an opportunity to address the issue in cross-examination.

[78] The rule in Browne v. Dunn is rooted in fairness to the witness. When it is followed, the court is assisted in the evaluation of each witness' credibility.

[79] In some cases, it may be apparent from the tenor of counsel's cross-examination of a witness that the cross-examining party does not accept the witness's version of events. Where the confrontation is general, known to the witness, and the witness's view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so. (R. v. Quansah, 2015 ONCA 237, at para. 82 (C.A.)) That, however, was not this case. Defence counsel did not cross-examine the complainant's mother at all about her evidence on the defendant's statement.

[80] The rule is not to be rigidly applied. Each case must be determined on its own facts.

[81] These matters are relevant to the credibility of the complainant and the defendant. This case turns on credibility. That is why the Crown led the complainant's mother's evidence on the statement. She should have been given an opportunity to respond to what the defendant was going to testify to.

[82] Crown counsel did not object to the defendant's evidence when it was being led. Nor did he ask to recall the complainant's mother to testify as to these issues. The Court of Appeal has held that he should have done so. (Quansah, par. 124) The failure to do so makes it appropriate that I give less weight to this issue than I otherwise would have done.

[83] Nevertheless, I conclude that the failure of the defence to cross-examine on these points is a factor to consider in my assessment of the credibility of the defendant.

[84] The complainant's evidence is partially corroborated by the evidence of her mother as to her emotional state the evening of December 16 and during the subsequent dinner at the restaurant with the defendant. Her emotional state is consistent with having experienced a traumatic event before her mother arrived home.

[85] I do not accept the defendant's evidence that he would not have had a pair of sweatpants to change into, as the complainant said he did. He admitted leaving a few clothes at the apartment, and this evidence was corroborated by the complainant's mother. While the defendant was quick to say that he only left clothes there on the weekend, the evidence was that he stayed over on a weeknight from time to time. It only makes sense that he would have comfortable clothes at the apartment to change into.

[86] I accept that there were significant discrepancies between the evidence of the complainant at the trial and what she said in 2010.

[87] I also accept, however, what the Supreme Court of Canada has told us about the evidence of victims of sexual assault, and women who were children at the time of the alleged assault.

[88] A delay in reporting an assault, or as in this case a delay in reporting the details of a sexual assault, is not unusual.

[89] The Supreme Court of Canada has dealt with the issue of the relevance of late reporting of sexual assault to the credibility of the complainant in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. In the majority decision of the court, at paragraph 62, the court quotes the report of the Federal/Provincial Task Force on Uniform Rules of Evidence:

The expectations of medieval England as to the reaction of an innocent victim of a sexual attack are no longer relevant. A victim may have a genuine complaint but delay making it because of such legitimate concerns as the prospect of embarrassment and humiliation or the destruction of domestic or personal relationships.

[90] The court went on to say this at paragraph 63:

Application of the mistake reflected in the early common law now constitutes reversible error. See R. v. W.(R.), [1992] 2 S.C.R. 122, per McLachlin, J., (as she then was) at p. 136:

Finally, the Court of Appeal relied on the fact that neither of the older children was "aware or concerned that anything untoward occurred which is really the best test of the quality of the acts." This reference reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.

The significance of the complainant's failure to make a timely complaint must not be the subject of presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse.

[91] The court continued at paragraph 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[92] The complainant explained why she minimized the actions of the defendant in the 2010 interview. She did not want to be there. She had been forced to be there by her doctor and parents. She was frightened at the prospect of having to proceed with charges against the defendant. Consequently, she told the police that what happened was not as bad as it in fact was. I accept that evidence. Such a reaction is a reasonable one for a 13 year old child to have.

[93] I also accept her evidence that she did not understand the explanation given by the police officer for the term "erection". Even if she did understand it, it would not be unusual for a 13 year old girl to not want to engage in a discussion of whether the defendant's penis was erect. Any reticence in respect of this does not diminish the credibility of her trial evidence.

[94] Some of the inconsistencies between the evidence at trial and what the complainant told the police in 2010 were not the result of her minimizing the defendant's actions, but of discrepancies in some of the details of what she testified to. An example is the issue of whether she was sitting or lying on the couch.

[95] The Supreme Court has addressed the subject of the assessment of adult witnesses testifying about events that occurred when they were a child. In the case of R. v. W.(R.), [1992] 2 S.C.R. 122, McLachlin J. wrote:

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.

[96] In my view, a similar approach applies in this case.

[97] I accept the evidence of the complainant. As a result of that, and as a result of the weaknesses in the evidence of the defendant I have explained, I do not believe the evidence of the defendant. Nor, for the same reasons, am I left with a reasonable doubt as a result of the evidence of the defendant.

[98] I conclude that the Crown has proven beyond a reasonable doubt that the defendant sexually assaulted the complainant, and touched her body for a sexual purpose, on December 16, 2009. I find the defendant guilty on both counts.

Released: January 27, 2017

Signed: Justice P. K. Doody