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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2017-10-12

COURT FILE NO.: Durham Region, Central East Region; Info. Number 16-A35121

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.W.

Before: Justice Susan C. MacLean

Heard on: June 19, 20 and 21, 2017

Reasons for Judgment released on: October 12, 2017

Counsel:

• Greg Black — Counsel for the Crown
• Sean Fraser — Counsel for the accused C.W.

MacLean, J.:

Overview of the Case

[1] C.W. is charged with three sexual offences in relation to his daughter, T.S.: Sexual Assault (s. 271), Sexual Interference (s. 151) and Exposure (s. 173(2)). These offences are alleged to have occurred when T.S. was between 12 and 13 years old, at some time between December 31, 2014 and June 10, 2016.

[2] T.S. alleges that on two occasions her father used his hands to spread her legs while he took photographs of her vaginal area using his cell phone. She also alleges that he touched her vaginal and buttocks area with his penis, although there is no allegation of penetration. She also describes an incident consistent with masturbation by her father while he was seated on the toilet watching "inappropriate" videos as she was taking a bath. C.W. denies all of these allegations. If these acts were to be proven beyond a reasonable doubt the offences would be made out.

[3] T.S. is a very special girl, who was 14 at the time she testified but has the mental capacity of an 8 or 9-year-old child. She was 13 when the allegations came to light. T.S. approached her Educational Assistant (E.A.) teacher in the school yard at lunchtime on June 10, 2016 and reported what had happened that morning with her father. The Children's Aid Society was contacted within the hour and later that day, T.S. was interviewed by a Durham Regional Police Service (D.R.P.S.) officer, Det. Cst. McDermott, who videotaped the statement. That videotape was admitted pursuant to s. 715.1 as Exhibit 1.1 on the trial. Exhibit 1.2 is the transcript of that interview. T.S. testified, as did her E.A. Teacher, P.R.

[4] Det. Cst. Lockwood, of the D.R.P.S. gave evidence with respect to the search of C.W.'s cell phone which was seized from him the same day that T.S. came forward with the allegation, on June 10, 2016. Using software, the officer located two pieces of evidence which were entered as Exhibits 3 and 4 at this trial. Exhibit 4 is a poor-quality image of a vagina. Exhibit 3 is an image of text relating to a description of "Daddy Dom" and "Little Girl Submissive" sexual behaviour.

[5] C.W. testified and denied that he had any sexual contact with his daughter and denied taking any photographs of her vaginal area with his cell phone. He also denied masturbating in the bathroom while she was in the bathtub.

[6] I was not impressed by C.W.'s testimony, however, for the following reasons, while I find that T.S. was a very credible witness, there are sufficient issues with her evidence to raise a reasonable doubt and therefore C.W. must be acquitted.

Reasonable Doubt and Credibility

[7] It is trite law to state that C.W. is presumed to be innocent unless the Crown can establish his guilt beyond a reasonable doubt. In assessing the evidence in this case, I have also instructed myself to apply the law with respect to reasonable doubt in relation to credibility as set out in R. v. W.(D.), [1991] S.C.J. No. 26 (S.C.C.). In that case Mr. Justice Cory writing for the majority states at paragraph 27 that:

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole…

28 …A trial judge might well instruct the jury on the question of credibility along these lines:

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.

[8] I remind myself that it is an error to approach the evidence in a "he said, she said" case by assessing which witness's evidence is preferred, as this flies in the face of the reasonable doubt standard of proof. It is not an "either, or" test.

The Law with Respect to the J.J.R.D. Case, Sexual Knowledge and No Motive to Fabricate

[9] The Crown argues that I should reject C.W.'s denial of these offences based on a reasoned acceptance of the truth of T.S.'s evidence. In the case of R. v. J.J.R.D., [2006] O.J. No. 4749 (O.C.A.), the Ontario Court of Appeal reviewed the adequacy of the trial judge's Reasons for Judgment in convicting the accused. At paragraphs 53 and 54 the Court concluded:

53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

54 On the trial judge's reasons, the appellant knew why he was convicted. His daughter's evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant's guilt beyond a reasonable doubt despite the appellant's denial of the charges under oath.

[Emphasis added]

[10] It is important to note that in J.J.R.D. there were entries in a diary written by the young complainant that were found to be a key piece of evidence in coming to the decision in that case. As indicated, this evidence had a "credibility enhancing effect". So while the law is that it could, the complainant's evidence in that case did not in fact stand alone.

[11] J.J.R.D. was confirmed by the Ontario Court of Appeal in R. v. D.T., 2014 ONCA 44, [2014] O.J. No. 255 (O.C.A.):

71 However, in spite of my concerns about the trial judge's rejection of the appellant's evidence, I must keep in mind that acceptance of a complainant's evidence may be sufficient explanation for rejecting the evidence of the accused: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66 …

[Emphasis added]

[12] The Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No.52 (S.C.C.), had confirmed that this type of analysis is the proper approach:

66 Finally, the trial judge's failure to explain why he rejected the accused's plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge's reasons made it clear that in general, where the complainant's evidence and the accused's evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused's denial. He gave reasons for accepting the complainant's evidence, finding her generally truthful and "a very credible witness", and concluding that her testimony on specific events was "not seriously challenged" (para. 68). It followed of necessity that he rejected the accused's evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused's evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt.

[Emphasis added]

[13] This law was also applied in R. v. J.C., [2013] O.J. No. 3383 (O.C.A.), at paragraph 7 where the Court again states: "as the Supreme Court of Canada has repeatedly said, a reasoned acceptance of a complainant's evidence is a basis by itself for rejecting an accused's evidence."

[14] The Court of Appeal in R. v. D.P., 2017 ONCA 263, [2017] O.J. No. 1593 (O.C.A.), considered an appeal involving a complainant "where there were many reasons to be concerned about [his] credibility, including a long criminal history, including offences involving dishonesty, drug abuse and a longstanding penchant for lying to authorities": at paragraph 5. In that case the complainant's evidence did not stand alone as there were two witnesses to the physical violence inflicted upon the complainant by the accused, although they were not witnesses to the alleged sexual abuse. In dismissing the appeal against conviction, the Court had to address whether the trial judge had placed "undue reliance" on J.J.R.D. This analysis is set out in paragraphs 23 to 25:

Did the trial judge place "undue reliance" on R. v. J.J.R.D.?

23 The trial judge was alive to the Crown's burden of proof and the application of that burden in cases in which a complainant and an accused give diametrically opposed evidence of the relevant events. The trial judge specifically referred to R. v. W.(D.), [1991] 1 S.C.R. 742. He appreciated that mere belief of J.E.'s evidence, combined with a rejection of the appellant's evidence, could not constitute proof beyond a reasonable doubt.

24 The trial judge ultimately concluded that the appellant's evidence did not leave him with a reasonable doubt on the charges. In coming to that conclusion, the trial judge acknowledged that there was no specific feature of the appellant's evidence that caused him to reject his evidence. Rather, his rejection was based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence given by J.E. as supported by the evidence of the other two Crown witnesses. The trial judge referred to R. v. J.J.R.D., [2006] O.J. No. 4749.

25 Given the trial judge's assessment of the evidence, the passage he quoted from R. v. J.J.R.D. had application to this case. The trial judge made no error in convicting based on his considered and reasoned acceptance beyond a reasonable doubt of the evidence of J.E., despite his inability to point to any specific part of the appellant's evidence that caused him to disbelieve the appellant.

[Emphasis added]

[15] My colleague, Justice De Filippis, recently addressed the application of the J.J.R.D. type of analysis in R. v. Mitchell [unreported, dated June 16, 2017, O.C.J.] where the law is reviewed at paragraphs 23 to 25:

[23] The primary debate between the parties is how to apply the criminal law standard of proof in a case in which there is little or no evidence beyond the testimony of a defendant and complainant. In R v Woollam 2012 ONSC 2188, Justice Durno, sitting on appeal of my colleague, Justice Duncan, had this to say:

51 The trial judge believed J.P.'s evidence and was satisfied beyond a reasonable doubt of the appellant's guilt when her evidence was viewed with the other bases in the context of all the evidence. That the trial judge concluded there was nothing in the appellant's evidence when viewed in isolation that would cause him to reject it, does not mean His Honour found the appellant's evidence believable. As the trial judge noted, evidence is not viewed in isolation or piecemeal.

52 W.(D.), does not mandate an examination of the evidence favouring the defence in isolation from the rest of the evidence. In assessing Crown or defence witnesses, the trier of fact must consider their evidence in the context of all of the evidence, including whether it was internally consistent, whether it was consistent with other evidence called, the witness' demeanour and whether their evidence accords with logic, common sense and human experience. 1 That is what His Honour did.

53 At its highest, a reference to an accused's evidence being credible "when viewed in isolation" addresses whether his or her evidence was internally consistent, his or her demeanour when testifying, and whether, ignoring the other evidence, it accords with logic, common sense and human experience. It does not address inconsistencies with other testimony, other evidence or whether it accords with logic, common sense and human experience when viewed in the context of all the evidence.

A further appeal to the Court of Appeal to Ontario was dismissed: R v Woollam 2013 ONCA 711

[24] The Court of Appeal recently revisited this issue in R v Martin 2017 ONCA 322:

18 As this court held in J.J.R.D., at para. 53: "(a)n outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence." The ultimate question is not, on this analysis, whether the complainant's evidence is accepted as credible, but whether the allegations are proved beyond a reasonable doubt.

19 In J.J.R.D., although the trial judge found the complainant to be credible, the analysis had to go further. It was only after considering all the evidence that the trial judge accepted, including the complainant's evidence and "the credibility enhancing effect" of the complainant's diary, that the trial judge was satisfied of the accused's guilt beyond a reasonable doubt, despite the accused's denials. It was sufficient, in that case, for the trial judge to set out that the basis of his rejection of the accused's evidence was his reasoned acceptance beyond a reasonable doubt of the truth of the complainant's evidence. This reasoned acceptance of the complainant's evidence was not merely a matter of finding the complainant to be credible. Despite finding the complainant to be credible, the trial judge was only able to conclude that the accused was guilty beyond a reasonable doubt for some of the offences for which he was tried and not others.

20 As in J.J.R.D., the question before the trial judge in this case was not simply whether the complainant was credible, but whether the trial judge was left with a reasonable doubt of the guilt of the accused. It was open to her, as it was to the trial judge in J.J.R.D., to explain her rejection of the appellant's evidence in terms of her reasoned acceptance of the evidence to the contrary.

[25] I understand the principles enunciated in the aforementioned cases to mean that a conviction can be based upon a bare rejection of a defendant's testimony, if accompanied by a considered and reasoned acceptance of a complainant's testimony. That is, a judge is entitled to reject the defendant's testimony because the complainant's evidence (or other evidence) establishes guilt beyond a reasonable doubt. This must be explained in details that reflect the length and complexity of the case at hand. However, to simply reject the defence evidence and accept that of the prosecution is to commit error by finding guilt based on a decision about which side is more believable. I conclude that in a case in which there is little or no evidence beyond that of a defendant and complainant, the mistake of merely determining a credibility contest will be avoided if it is recognized that credibility assessments need not be divorced from the context of the case, specific reasons are be given for credibility assessments, and these reasons are framed by and tied to the standard of proof beyond a reasonable doubt.

[Emphasis added]

[16] The J.J.R.D. principles were confirmed again by the Ontario Court of Appeal on August 10, 2017 in R. v. A.N., 2017 ONCA 647. The trial judge had noted that in the facts of that case, which came down to the complainant's version against the accused's version of events, that it was important to seek out evidence that confirmed and supported the complainant's evidence. The trial judge failed, however, to identify any such evidence. The Court of Appeal repeated once again that this type of confirming evidence is not legally required, but found the Judge had erred by not meeting his own standard, and therefore set aside the conviction:

18 We agree that the trial judge's acceptance of the complainant's evidence was not "considered and reasoned", in accordance with J.J.R.D.

19 The trial judge was not required, as a matter of law, to seek out confirmatory evidence in order to make a finding of guilt. Nonetheless, in his reasons, the trial judge identified what, in the circumstances of the case, was necessary for him to reach a "considered and reasoned" acceptance of the complainant's evidence beyond a reasonable doubt -- the existence of confirmatory evidence supporting that of the complainant. However, the trial judge in his reasons failed to identify any independent evidence that strengthened his belief in the veracity of the complainant's evidence. By the standard he set, his acceptance of the complainant's evidence was not "considered and reasoned". Moreover, it is not clear that the evidence that the trial judge admitted includes any confirmatory evidence that supports the complainant's evidence.

[Emphasis added]

[17] The Court in A.N. also confirmed at paragraph 16 the principle set out in R. v. D.H., 2016 ONCA 569 (O.C.A.), that "rejection of an accused's evidence based on the acceptance of the complainant's conflicting evidence constitutes reversible error if the acceptance, beyond a reasonable doubt, is not considered and reasoned." See also R. v. Martin, [2017] O.J. No. 1080 (O.C.A.), at paragraphs 15 to 21. In paragraph 18 of Martin the Court explains how judges should approach the J.J.R.D. issue and says:

…The ultimate question is not, on this analysis, whether the complainant's evidence is accepted as credible, but whether the allegations are proved beyond a reasonable doubt.

[18] On a separate issue relating to how a young child would know about the sexual activities being complained of, the Court in A.N. stated that it is "not incumbent on [an accused] to explain how the complainant acquired the sexual knowledge she had, or to prove that the alternative explanations for her knowledge were true": see paragraph 61.

[19] The most recent decision by the Court of Appeal on the J.J.R.D. issue is R. v. R.A., 2017 ONCA 714 (September 14, 2017). It should be noted that there is an appeal as of right to the Supreme Court of Canada based on Justice Trotter's dissenting view that the trial judge erred in failing to address and explain how he resolved a "critical inconsistency" in the complainant's evidence. So perhaps we will receive some further guidance from the Supreme Court. In R.A. the trial judge did not explicitly accept or reject the accused's evidence, however noted that the accused "testified in a straightforward manner, was not evasive and did not exaggerate, embellish or colour his evidence" and that he "withstood cross-examination without a blemish" (see paragraphs 4 and 35). Despite this, there was a conviction. The trial judge found the complainant's evidence to be "genuine and truthful" and accepted her evidence completely (paragraphs 4 and 39). In dismissing the appeal, the majority (at paragraph 45) clarified how judges should approach the issue of inconsistencies:

45 … significant testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21, the accused is entitled to know "why the trial judge is left with no reasonable doubt". However, a trial judge is not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v. R.(C.), 2010 ONCA 176, 260 O.A.C. 52, at para. 48.

[Emphasis added]

[20] In reviewing the way in which the trial judge had assessed the complainant's credibility the Court of Appeal said (at paragraphs 53 to 56):

53 This was a credibility case, and at the end of the day the core of the complainant's allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant's evidence, and ultimately decided to accept her evidence in its entirety.

54 The trial judge's analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.

55 Although the trial judge's reasons are relatively brief, they are responsive to the live issues in the case and the parties' key arguments: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant's evidence, but nor did he reject it simply because he accepted the complainant's evidence.

56 The trial judge was entitled to reject the appellant's evidence "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence": R. v. J.J.R.D. (2006), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case.

[Emphasis added]

[21] I am also guided, however, by Justice Trotter's review in R. A. (in dissent) of the law regarding how judges must approach inconsistencies in the evidence of a witness:

77 I accept that trial judges are not required to address every inconsistency that arises on the record. However, this leeway has limits. I return to M. (A.), [2014 ONCA 769] in which the court addressed this issue, at para. 14:

A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.), at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), at para. 31. [Emphasis added.]

78 In R. v. H. (D.), 2016 ONCA 569, 338 C.C.C. (3d) 251, Feldman J.A. quoted part of the passage directly above and said, at para. 35:

As the Supreme Court stated in R. v. Dinardo, at paras. 26-27, the failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant's testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt.

See also R. v. A.N., 2017 ONCA 647, at para. 16.

[22] Many cases of alleged child abuse include situations where there is no apparent motive to fabricate. On this issue I apply the law as set out in R. v. Jackson, [1995] O.J. 2471 (O.C.A.); R. v. LeBrocq, 2011 ONCA 405; and R. v. John, 2017 ONCA 622. Even where a witness does not appear to have a reason to lie, it does not mean they are telling the truth. No apparent motive to fabricate does not mean no motive. A good relationship between the complainant and accused amounts only to absence of a proven motive and does not prove there is no motive to lie. The accused bears no onus to prove there is a motive to fabricate.

[23] I have directed myself to apply all of these legal principles when assessing the evidence in C.W.'s case.

Approach to the Evidence of Children including those with Special Needs

[24] Judges must assess the evidence of young children as instructed by the Supreme Court of Canada in R. v. B.(G.), [1990] S.C.J. No. 58 (S.C.C.). They indicated at paragraph 48 that:

48 Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

[25] In R. v. R.W., [1992] S.C.J. 56 (S.C.C.), the Supreme Court again considered the proper approach to be used when considering the evidence of young children.

23 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55…

[see passage from B.G. quoted above]

25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

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

[26] The Ontario Court of Appeal considered the issue of credibility in the context of a child witness with special needs in R. v. Levert, [2001] O.J. No. 3907 (O.C.A.), where Justice Rosenberg wrote:

3 The complainant has several disabilities. He is dyslexic, cannot tell time, days or months, cannot read nor write nor count and does not have a good memory. He suffers from Attention Deficit Disorder, has difficulty concentrating, and has been taking Ritalin since the age of seven or eight years.

10 The appellant submits that the verdict of guilty is unreasonable because it depends entirely upon the unconfirmed evidence of the complainant. He points out that the complainant has a number of "serious personal difficulties" that make his evidence unreliable…

13 As I have said, the complainant was fourteen years of age when he testified. While the dates of the alleged offenses were somewhat uncertain because of the complainant's disabilities, it is likely that they occurred three to four years earlier. The complainant had some problems with his memory. However, he was able to remember aspects of the incidents that the appellant confirmed, such as the name of the movie the complainant and his friend were watching at the appellant's home. The complainant's description of the two incidents of improper touching seems to have remained constant, although there was some inconsistency in minor details, such as the distance he and the appellant drove before reaching the rollerblading arena and the size of the parking lot.

14 The appellant nevertheless submits that because of the complainant's disabilities, the verdict is unreasonable. He submits that the complainant's evidence is so unreliable that a conviction based on that evidence cannot stand. This court has the power to overturn a verdict of guilty based upon findings of credibility if those findings are unreasonable. McLachlin J. summarized the limits of this court's jurisdiction in R. v. W. (R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) at 142:

The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

15 While this was said in the context of a trial by judge alone, this court has a similar power to intervene in a trial by jury. I am not convinced that a finding in favour of the credibility, including reliability, of the complainant's evidence is unreasonable. In this respect, a viable argument can be made that the attack on the complainant's evidence is based upon unsubstantiated preconceptions about children with these types of disabilities. There is nothing to indicate that with all of his problems, mostly learning disabilities, the complainant was unable to accurately recall that the appellant had abused him. The evidence of the complainant had to be carefully considered since it was the sole foundation of the Crown's case and the complainant was testifying to events several years earlier. That evidence was not, however, inherently unreliable because of the complainant's learning disabilities.

[Emphasis added]

[27] I have considered this guidance from the Supreme Court of Canada and Ontario Court of Appeal in assessing the evidence of T.S.

Disclosure of the Alleged Abuse to T.S.'s Teacher

[28] I instruct myself that the disclosure of the alleged abuse in this case to T.S.'s teacher cannot be used as supportive of the complainant's evidence. I am guided by R. v. D.T., 2014 ONCA 44, [2014] O.J. No. 255 (O.C.A.), where the limits to the use of this type of evidence is set out in paragraphs 86 and 87:

86 The first reason the trial judge gave for finding D.B. credible was that he disclosed what happened to both the counsellor and his mother. This statement presupposes the truth of the disclosures and is of no value as a credibility finding.

87 In Dinardo, [2008 SCC 24, [2008] 1 S.C.R. 788] at paras. 37-38, Charron J. explained how prior consistent statements may be used and how they may not be used. They may be admissible as part of the narrative or to explain the context in which a disclosure of sexual assault was made. For those purposes, the evidence about D.B.'s disclosure was admissible in this case. However, Charron J. also cautioned that prior consistent statements cannot be used for the impermissible purpose of confirming the truthfulness of the allegation. See also R. v. G.C., [2006] O.J. No. 2245 (C.A.), at para. 20; R. v. D.B., 2013 ONCA 578, 310 O.A.C. 294, at para. 31. There is no indication in the trial judge's reasons that he was using the prior disclosure for the former, limited purpose. The fact of multiple disclosures cannot support D.B.'s credibility. This was an error of law.

[Emphasis added]

[29] In 2015 to 2016 P.R. was T.S.'s Educational Assistant Teacher at an elementary school in a "multiple exceptionalities" classroom with one teacher, 3 teaching assistants and up to 10 students. It was a class segregated from the mainstream students so that they could attend to the special needs of the students whose academic level was lower than mainstream. There were two students for every adult worker. It was a grade 7 and 8 mix of students, with T.S. being in grade 7. Ms. R. worked primarily with the grade 8 students, however, in the afternoons she would work with T.S. to help her with language, reading and math. T.S.'s reading level was at approximately grade 2 or 3 rather than grade 7. Ms. R. would read the required textbooks to T.S. and explain them to her. In her assignments, T.S. would have fewer questions asked of her than mainstream students, and those questions would be tailored to her needs. T.S.'s vocabulary was "pretty good" but not at the standard for her grade level. She could communicate her thoughts clearly.

[30] Ms. R. described T.S. as a very sweet child who was very loving, caring and affectionate. She would greet Ms. R. by being happy and would sometimes say, "I love you" to Ms. R. She addressed others similarly. In cross-examination, Ms. R. agreed that when T.S. was having a difficult time with a task she would get frustrated and not want to do it anymore. Ms. R. had seen her start to "tear up" in frustration. She had seen T.S. express a range of emotions but had never seen her fly into a rage.

[31] On June 10, 2016, T.S. approached Ms. R. in the school yard and reported that her father was sexually assaulting her. This was at approximately 12:05 p.m. and lunch recess had just begun. Ms. R. was on duty in the yard when T.S. came over to her. There were no other students in the area so it was a private conversation. Ms. R. made notes of the conversation that day within the hour and before calling the Children's Aid Society. She placed quotes around the verbatim words. Ms. R. testified that the following exchange took place:

T.S.: My father sexually assaults me.

Ms. R.: What did he do?

T.S.: Well this morning he was taking pictures of my private parts, I didn't like it so I kicked him away. [at that time T.S. make a kicking motion with her right foot, picked it up in the air and kicked forward]

Ms. R.: Did he touch you?

T.S.: Not this time but he has before.

Ms. R.: How was he taking the pictures, was he using a phone or a camera?

T.S.: His phone, his texting phone.

[32] When asked about T.S.'s demeanour during the disclosure, Ms. R. testified that, "it was very like she was telling me about the weather", and was "very matter-of-fact", like "this happened". She did not appear to be upset, worried or concerned.

[33] T.S. testified in cross-examination that she did not use the word "sexually assaults me" when she told Ms. R. what her father had done, but rather, said "sexually harassed me". T.S. explained that it means the same thing but in different words. T.S. said she had learned the words "sexually harassing" from watching the B.T. [Breakfast Television] news with her Grandma. She added, "a lot of people assault other people sexually harassing them."

[34] Following the disclosure to Ms. R., the conversation turned to a discussion about a T.V. show or video game that T.S. was into at the time. Ms. R. then went into the school to report the disclosure to the school principal, L.H., who provided Ms. R. with the contact information for the C.A.S. By the end of the lunch recess, within the hour, the phone call was made. The C.A.S. in turn called the police who interviewed T.S. later the same day.

[35] Ms. R. testified that T.S. had never advised her of anything of this nature before. T.S. had, however, told Ms. R. that her step-mother, M.W., was mean to her and calls her stupid. T.S. had told Ms. R. that her step-mother was mean in this manner on about 5 to 10 occasions. She could not recall when T.S. had last told her this, but was firm in her response that the issue of her step-mother was not raised in the context of T.S. disclosing the sexual allegations concerning her father.

[36] I found Ms. R. to be a very credible, reliable and fair witness. I accept her evidence completely.

The Evidence of the Complainant, T.S.

[37] T.S. was a very unique child witness. As indicated earlier, she was 14 when she testified, with the capacity of an 8-year-old. She was enthusiastic, upbeat, helpful and pleasant in her manner to the Crown, Defence Counsel and the Court. As Defence Counsel submitted at the end of the trial, "she is in many ways an adorable young lady". There was no difference in her manner between Examination-in-Chief and Cross-Examination. She would cheerfully respond, "Okay" in a happy sing-song voice to many of the things that both lawyers said to her. She was very direct in her responses and very literal in her understanding of questions (consistent with a child of about 8 rather than a 14-year-old). T.S. testified by way of close-circuit television (C.C.T.V.) and was seen skipping into the room in the morning just before cross-examination began. She clapped her hands enthusiastically and squealed with delight when both Crown and Defence Counsel told her they were finished their questions of her. She brought three "plushies" into the witness room with her: a bear, a fox and a rabbit, all based on characters from a computer game/app called "Five Nights at Freddy's". She placed them on the table in front of her while testifying and carried them with her on her breaks. She was most insistent on introducing them to everyone at the end of her examination-in-chief. Throughout much of her evidence, T.S. rocked back and forth in her chair and moved her hands and fingers about. The Court took a break every half hour or so to accommodate her needs.

[38] I remind myself that the Court must be very cautious about relying on the demeanour of any witness. I direct myself to follow the decision of the Ontario Court of Appeal in R. v. D.P., 2017 ONCA 263, [2017] O.J. No. 1593 (O.C.A.), with respect to the appropriate use of demeanour evidence (at paragraphs 26 and 27):

26 A witness's demeanour is an appropriate consideration when assessing credibility. Demeanour can, however, be misleading and should be factored into the credibility assessment with care. There is always a danger that demeanour can be overemphasized by a trial judge or a jury.

27 This trial judge made a single reference to J.E.'s demeanour, indicating that he did not detect any deceit or dishonesty in J.E.'s demeanour during his testimony. There is no suggestion in the reasons that the trial judge used J.E.'s demeanour as a positive factor in assessing J.E.'s credibility. He merely referred to the absence of any appearance of deceit or dishonesty. Even if the trial judge did use J.E.'s demeanour to some extent in assessing credibility, there is no basis upon which to find that he put undue emphasis on J.E.'s demeanour when assessing his credibility.

The Videotape Interview of T.S. on June 10, 2016

[39] As indicated earlier, the police interviewed T.S. on the same day that she disclosed the matters to her teacher. The interview was videotaped and became Exhibit 1.1 (the transcript is Exhibit 1.2). Det. Cst. Tim McDermott of the D.R.P.S. interviewed T.S. on June 10, 2016 between 3:54 to 5:00 p.m. There were a couple of occasions when the officer left T.S. alone in the room for a few minutes while he consulted a colleague.

[40] T.S.'s demeanour on the video is more subdued than when she testified in court. She is quiet, not smiling and looking down. She frequently responds by nodding her head for yes or shaking her head for no, rather than responding in words. After the first break in the interview she frequently looks down at a "crab arm" craft that she had made from pipe cleaners while she manipulates the pipe cleaners with her fingers.

[41] In assessing T.S.'s evidence, it is very helpful to review the details of the videotaped statement in terms of how the allegations against C.W. are disclosed by T.S. She often volunteers significant details without being led. While reluctant to discuss some things, T.S. is frank and credible and there is no embellishment. She refers to all kinds of sexual matters as "inappropriate" and clearly dislikes discussing them. She does not easily or glibly discuss what happened with her father.

[42] After the introductions, Det. Cst. McDermott speaks about how Ms. R. helps T.S. with her school work. He asks if she remembers talking to Ms. R. that day and when T.S. agrees he asks what they had talked about. After hesitating T.S. says, "About what happened this morning." When asked what had happened there is another long pause and then T.S. says, "That Daddy was being inappropriate." When Det. Cst. McDermott asks, "And what was Daddy doing that was inappropriate?" T.S. responds, "He was taking pictures." When asked what he took pictures of T.S. says, "of my private areas". The officer then asks what he had been using to take the pictures, and T.S. replies, "His phone". When asked if he had done this before T.S. nods yes. It is important to note that at this point the officer does not ask any leading questions and lets T.S. tell him the details.

[43] When asked for further information about what had happened that morning T.S. says that she was "thinking of going really quick", putting her clothes on. Her father wakes her up in the mornings but she did not know what time that occurred at. It was clear from her testimony that T.S. does not have a good grasp of what time on the clock things happened. She is also very literal in her thinking. A good example of this was when asked what time school starts and she responds, "After we get off the bus" and when asked what time she needs to be at the bus, she answered, "Really early". From the evidence of both T.S. and C.W. I accept that the usual morning routine would be that he would wake her up, then her grandfather (C.W.'s father) would pick them up and drive C.W. to work and then take T.S. to his home. She would then spend time with her grandmother and grandfather before getting on the bus to go to school.

[44] T.S. is asked by Det. Cst. McDermott what she wears to bed at night and she tells him she had boys' pyjamas with skulls on them. When asked what she had been wearing that morning, she says they were different pajamas, a purple shirt and bottoms with cupcakes on them. She was going to change into pants when her father came into her room. The following exchange occurs:

Det. Cst. McDermott: Okay. And who was in your room? Was it you, or was there anyone else?

T.S.: There was me, and Daddy showed up.

Det. Cst. McDermott: Okay. And then tell me what happened.

T.S.: And then he started taking pictures.

Det. Cst. McDermott: Okay. And did you have your pyjamas on, or were they off, or…

T.S.: I had my pyjama shirt on, still.

Det. Cst. McDermott: Okay. And did you have your pyjama bottoms on?

T.S.: No.

Det. Cst. McDermott: Okay. And when you go to bed and you wear your pyjamas, do you wear underwear under your pyjamas?

T.S.: No.

Det. Cst. McDermott: Okay.

T.S.: Cuz I don't have any.

Det. Cst. McDermott: You don't have any…

T.S.: All my underwear is all in the laundry.

Det. Cst. McDermott: Okay. So you didn't have any underwear to wear. So, you had your pyjama shirt on, but you didn't have your pyjama pants on,

T.S.: Nnn-nnn. [answering in the negative]

Det. Cst. McDermott: Okay. So, then tell me what happened.

T.S.: And I was trying to kick him to go away.

Det. Cst. McDermott: Okay. So, he was taking pictures. And what did he take pictures of?

T.S.: Of my private areas.

Det. Cst. McDermott: Okay, when he took those pictures was he close to you or far away?

T.S.: Kind of close. And I was kicking him, and I slapped him to get away.

Det. Cst. McDermott: Okay. And did Daddy say anything to you?

T.S.: No.

Det. Cst. McDermott: No? Did he say anything at all, in the morning?

T.S.: [shakes head no]

Det. Cst. McDermott: So when you were kicking at him, what did Daddy do?

T.S.: He just moved away from me.

Det. Cst. McDermott: Mmm-hmm? And how do you know he was taking pictures of your private parts?

T.S.: Cuz I saw him do it.

Det. Cst. McDermott: Okay. Did you see any of the pictures after?

T.S.: No.

Det. Cst. McDermott: No? When he took a picture of you, was it of your whole body, or just of your…

T.S.: No.

Det. Cst. McDermott: Just your private parts?

T.S.: Mmm-hmm [answering yes].

[45] T.S. was never asked by the officer or in her trial testimony to explain how she knew he was taking a picture of just her private parts. Presumably her belief is based on where the phone was in relation to her body, but that was never articulated by her other than saying it was "kind of close". I cannot make findings of fact based on speculation.

[46] T.S. is extremely reluctant to use the proper names for body parts during both the interview and her evidence at trial. Det. Cst. McDermott proceeds to clarify on the video what T.S. means by her private parts. T.S. points to her crotch area. She tells the officer "I just call it a flower" and says that she knows the proper name for it, "but I don't want to say it". The officer offers to say it and have her confirm, however, she repeats, "But I just don't want to say it". When asked if she had ever heard the word "vagina" she tells the officer yes and says, "I just call it a flower".

[47] T.S.'s statement then continues as follows:

Det. Cst. McDermott: Okay. So, he took a picture of your flower? Okay. And how long did that go on for?

T.S.: Um, he – one time, a different day, he did it to me again.

Det. Cst. McDermott: Okay. Okay, let's just – we'll talk about this day first so he took…

T.S.: Is Daddy going to jail?

Det. Cst. McDermott: Oh, we're just talking right now. We're just going to talk about what happened. I'm just trying to make sure that you're safe. Okay, T.? So let's not worry about stuff like that right now. Okay? I just want to make sure you're safe. That's my job, okay? So he took a picture of your flower. Do you know how many pictures he took?

T.S.: [shrugs in an "I don't know" gesture]

Det. Cst. McDermott: No?

T.S.'s question about her father going to jail suggests she is aware of the serious consequences of disclosing what he did to her. She was never asked by the officer or at trial about how she knew her father might go to jail for what he had done.

[48] Det. Cst. McDermott proceeds to question T.S. about what the phone looked like. She thinks it might be an Apple phone but says it was a different kind but she forgets what it is called. The phone seized from C.W. upon arrest was a Samsung. She tells the officer she never plays on her father's phone because she has her own tablet and laptop devices, although she does not have a cell phone. At no point during the interview or at trial was she asked to describe the phone in any greater detail.

[49] Det. Cst. McDermott continues to clarify what had happened that morning.

Det. Cst. McDermott: Okay, Um, so after Daddy took the pictures, then what happened?

T.S.: Um, I was trying to kick him…

Det. Cst. McDermott: Mmm-hmm.

T.S.: …to get away from me.

Det. Cst. McDermott: Okay. Did you say anything to Daddy?

T.S.: I said, "Get!"

Det. Cst. McDermott: Okay. And then what happened?

T.S.: And then he backed off.

Det. Cst. McDermott: Okay.

T.S.: Then he went somewhere else.

Det. Cst. McDermott: Okay. Then what did you do?

T.S.: I put all my clothes on, and I just put my pyjamas um, pyjamas on my bed.

Det. Cst. McDermott: Okay. And then after you put your clothes on, what did you do next?

T.S.: I put my glasses on, and I go to the door, and put my shoes on, and my coat on. But I didn't have my spring coat cuz it was at my grandma's.

Det. Cst. McDermott: Okay. And then what?

T.S.: And then I go to Grandma's, and we – and then brush my hair and then my teeth.

[50] T.S. explains that she would brush her hair and teeth when she got to her grandmother's home rather than at the apartment before she left. She tells the officer that her father did not say anything to her before she went to school, and that nothing else had happened that day. Det. Cst. McDermott then returns to the issue of photos being taken on a different day.

Det. Cst. McDermott: So, you mentioned that there was another time that Daddy took pictures. When was that?

T.S.: On another Monday, he tried to do it to me again. And he touched me too.

[51] It is important that T.S. spontaneously volunteers that C.W. touched her without being asked anything about this by the officer. It is not in response to any suggestive questions. She says she does not know when it happened but through a series of questions and answers tells Det. Cst. McDermott that it was when she was 12 years old. She tells the officer she is 13 at the time of her statement and that her birthday is January 26th. The officer continues to ask open-ended questions to allow T.S. to tell him what happened.

Det. Cst. McDermott: Okay. So, you were 12. Okay. So, last year then that happened. Okay. Let's talk about that. Tell me about that day.

T.S.: He was touching my private parts, when I didn't like it.

Det. Cst. McDermott: Mmm-hmm.

T.S.: And then he kept on taking pictures of me.

Det. Cst. McDermott: Okay. So he was touching your private parts. And where did that happen?

T.S.: Right here [T.S. points to her crotch area].

[52] T.S. tells the officer that the touching happened on her bed in her room when there was no one else home. It was daytime. At times T.S. is reluctant to talk about what took place with her father. The officer asks:

Det. Cst. McDermott: Okay. And how did that happen, in your bed? Tell me about that.

T.S.: [pauses] I don't want to.

Det. Cst. McDermott: Oh, you're doing such a good job, T. You're being really, really brave today in telling me all the stuff that I've asked. You're doing a really good job. And I know that you said Daddy touched you, and you pointed to your private parts, again. So, did Daddy touch you on your vagina?

T.S.: [long pause] Mmm-hmm [answering yes].

Det. Cst. McDermott: Okay. And do you remember what you were wearing that day? Were you wearing clothes?

T.S.: Mmm-hmm [answering yes].

Det. Cst. McDermott: Yeah? Okay. Did the touching happen on top of your clothes or underneath your clothes?

T.S.: Underneath.

Det. Cst. McDermott: Underneath your clothes? Okay.

T.S.: And I was trying to get my clothes on. I took my everything off, and then he came in.

Det. Cst. McDermott: Okay, you took your pyjamas off, and he came in?

T.S.: Mmm-hmm [answering yes]

Det. Cst. McDermott: Okay. Do you remember if he said anything?

T.S.: He didn't say anything.

Det. Cst. McDermott: Okay. And then what happened?

T.S.: And then he kept on touching me, and I didn't like it.

[53] While the officer asks a leading question, "did Daddy touch you on your vagina?" this is not as problematic as it might have been because it was after T.S. had already pointed to her crotch area and told the officer that her father had been touching her private parts. I am cautious, however, about what weight to attach to T.S.'s evidence where it is the result of leading or suggestive questions by Det. Cst. McDermott.

[54] T.S. then describes that she was standing while her father was standing behind her. He was wearing his clothes. When asked how long he touched her for, T.S. shrugs in an "I don't know" gesture and says, "and then I stepped on his foot", and that she was trying to kick him, but that he didn't stop. The officer then asks more about the touching.

Det. Cst. McDermott: …And when you said he – he touched you underneath your clothes, where did he touch you?

T.S.: On my flower once.

Det. Cst. McDermott: Okay. And did you touch you just – how did he touch your flower?

T.S.: [long pause] I don't want to say anything [shaking her head no]

[55] It is apparent at this point in the interview that T.S. is very reluctant to describe what her father did. Det. Cst. McDermott encourages T.S. to help him build a puzzle by putting all of the pieces together and telling him what happened.

Det. Cst. McDermott: …Can you help me? Can you help me get those rest of those puzzle pieces T.?

T.S.: Mmm-hmm. [nodding yes]

Det. Cst. McDermott: Okay. So, how did he touch your flower, T.?

T.S.: He was rubbing it.

Det. Cst. McDermott: Okay. And was her rubbing it on the outside, or on the inside?

T.S.: Outside.

Det. Cst. McDermott: Okay. Um, did Daddy have you touch him at all?

T.S.: Nnn-nnn [shaking head no].

Det. Cst. McDermott: No? Okay. Do you remember if Daddy said anything at all?

T.S.: He didn't say nothing.

Det. Cst. McDermott: No? And what did you say to Daddy?

T.S.: I said, "No."

Det. Cst. McDermott: Okay. And how – how did that – did anything else happen?

T.S.: He touched my other private part.

Det. Cst. McDermott: Okay. And what's your other private part?

T.S.: My root.

Det. Cst. McDermott: Your what?

T.S.: My other flower.

Det. Cst. McDermott: Okay. So, are you talking about your – your bum? [he points to his buttocks]

T.S.: [nods yes]

Det. Cst. McDermott: Is that what you're talking about?

T.S.: [nods yes]

Det. Cst. McDermott: Yes? Okay. So, tell me about that. How did he touch your bum?

T.S.: He was taking pictures, and then he was touching it.

Det. Cst. McDermott: Okay.

It is important to note that the officer asks a leading question and gestures when clarifying what her "root" was. Again, I am mindful to be cautious where suggestive questioning of a child occurs.

[56] T.S. tells Det. Cst. McDermott that C.W. took the picture using his phone while they were in her room. She was standing and "He was leaning on me". She is not asked to explain to the officer what she means by C.W. "leaning on" her, but says he was behind her when he did this. She was not asked to explain this at trial. Det. Cst. McDermott continues to ask for more details.

Det. Cst. McDermott: Was any part of his body touching your body?

T.S.: Mmm-hmm [answering yes]

Det. Cst. McDermott: What part?

T.S.: His flower.

Det. Cst. McDermott: Okay. So – and a boy's flower, do you know what that is called?

T.S.: [nodding yes]

Det. Cst. McDermott: What's a boy's flower called?

T.S.: But I don't want to say it.

Det. Cst. McDermott: Why is that?

T.S.: Cuz I don't like it.

Det. Cst. McDermott: But it's just a word. Right?

T.S.: I just don't like it.

[57] Det. Cst. McDermott then discusses the names of different body parts on girls and boys with T.S. He mentions that girls have a vagina, a bum and breasts and that boys have a bum and a penis.

Det. Cst. McDermott: Okay. So, are any of those words what you're talking about, when we say flower? Which words are we talking about, when we say flower?

T.S.: Girls have a girl flower and boys have a boy flower.

Det. Cst. McDermott: Okay. And is the boy flower- do you know that to be called a penis?

T.S.: Mmm-hmm [nodding yes].

[58] Again, this is a leading question by Det. Cst. McDermott. The officer then asks, "So, how is the boy flower touching you?" to which T.S. responds, "He just leaned against me." Again, T.S. says that they were not lying down, but rather standing up with C.W.'s "boy flower" touching her "other flower" meaning her buttocks. She said that his flower touched her bum "in the middle". When asked if his flower went inside her bum, T.S. says no, it was just on the outside. It is important that T.S. does not adopt the officer's wording asking if it went inside. So, she demonstrates that she is not simply a suggestible witness who agrees with everything the officer mentions. She is capable of describing what did and did not happen. She says his flower also touched her other flower, meaning her vagina, but that it happened on another day. She does not use the word vagina when describing it, but the officer clarifies this.

[59] In the interview when asked if his flower touched her flower on the other day the pictures were taken (not June 10th), T.S. shrugs in an, "I don't know" gesture. At trial when asked about the "other time" that her father took photos, T.S. was asked if she could remember the way he had touched her and she again shrugged her shoulders in an "I don't know" gesture and said simply, "No". This is different from another part of her police interview when she says that C.W. touched her "on another Monday" when photos were taken [see paragraph 50 above]. This is a significant detail, so it leaves me confused about what T.S. is saying happened on the other occasion when pictures were taken. It may be that when she had earlier said her father tried to take pictures on "another Monday" and then immediately said, "And he touched me too" that she was talking about a separate incident. They seem to be related answers, but given how T.S. communicates, this may not be so. It was never clarified at trial, so I am left to assess this based on the video interview alone. The apparent contradiction is problematic.

[60] Compounding the difficulties with this area of her evidence, T.S. tells the officer that when "he took pictures on the other Monday" that he used the same cell phone that he had used on June 10, 2016. The evidence is not clear about what T.S. means when she speaks of "the other Monday". She used the expression "the other Monday" a few times in her evidence. Her statement to Det. Cst. McDermott that C.W. used the same phone is an important discrepancy because he had only possessed the same phone since June 6, 2016, which is inconsistent with her claim that the other time he did this was when she was 12. Her birthday is in January. C.W. testified he had lost his previous phone a couple of weeks before he got his new phone. If T.S. is correct that photos were also taken before June 10th she is either mistaken about which phone was used or when it happened. Either way, it is problematic that T.S. says it was the same phone, which is impossible on the evidence before me unless the previous incident was just days before the events of June 10th rather than when she was 12.

[61] Det. Cst. McDermott asks T.S. how many times her father took his flower and put it on her flower, and she answers, "Twice". She clarifies that this happened when she was 12.

[62] Det. Cst. McDermott tries to find out more details about the "other" time that T.S. said C.W. had put his "flower" on her "flower". T.S. describes that it took place early in the day when she was trying to put her clothes on. C.W. came closer to her and she kicked him and then he went away. She added "and he's sending those pictures to someone." When asked how she knew that, T.S. said he was texting after taking the photos. This is an interesting detail. T.S. then describes that following this event she followed her usual morning routine of getting dressed and going in her grandfather's car.

[63] There is confusion in the way that T.S. describes this second incident of alleged touching. She has previously told the officer that he touched her flower twice, but when asked a series of questions about the second time, she says he did not touch her. It is potentially contradictory. I say potentially, because while it is contradictory, it may be based on T.S.'s inability to articulate what she means.

Det. Cst. McDermott: But was there any touching that day?

T.S.: Nnn-nnn. [indicating no]

Det. Cst. McDermott: Okay, cuz we're talking about the – the other time that he – you told me about the one time he touched you. And we're talking, now, about the other time he touched you. Tell me about the other time that he touched you.

T.S.: [long pause] It was only twice.

Det. Cst. McDermott: Okay. So, we talked about the one time, but we didn't talk about the second time, yet. I think we started to, but then we kind of – I think I might have taken us off somewhere else, and I talked about the pictures. And then you mentioned him sending the pictures. So we didn't really talk about it. So, tell me about that other time.

T.S.: He kept on doing it.

[64] The officer continues to try and clarify what the second touching was. T.S. proceeds to describe that she was in her room trying to get her clothes on when C.W. just came in her room and "He did it, again." She says that he got his phone out, started taking pictures and was texting again. When asked what C.W. was doing when taking the pictures, for the first time she adds an important detail without any leading by the officer.

T.S.: He's trying to open my legs.

Det. Cst. McDermott: He what?

T.S.: He's trying to open my legs.

Det. Cst. McDermott: Okay. So, he's trying to open your legs? And what happens?

T.S.: The he takes the pictures, again.

Det. Cst. McDermott: Okay. During this time, does any part of his body touch your body?

T.S.: Nnn-nnn. [indicating no]

Det. Cst. McDermott: No? So, that time he doesn't touch you? Just he touches you, when he's trying to open your legs. But does he touch you with any part of his – other part of his body?

T.S.: Nnn-nnn. [indicating no]

Det. Cst. McDermott: No? So are there any other times that his flower touches your flower?

T.S.: Nnn-nnn. [indicating no]

Det. Cst. McDermott: Okay. So, how many times the, do you think his flower has touched your flower?

T.S.: Twice.

[65] I am left with confusion about whether T.S. is saying that he touched her "flower" with his "flower" twice meaning on two different occasions or only once. She describes the taking of photos twice, including him trying to open her legs, but never goes on to describe a second incident of touching, although she says "twice" when asked. Later in the interview she confirms that when C.W. took photos of her the same morning (June 10th) that his "flower" did not touch her "flower". This is another example of where T.S.'s challenges in articulating what happened causes me to have concerns about the weight to attach to what she describes. I do not know if the confusion is based on faulty memory or inability to articulate. Either way, it raises concerns about the weight I can attach to it.

[66] Det. Cst. McDermott asks who lives in the home to determine who would have been there when C.W. was taking the photos. T.S. tells him that her step-mother, M.W., was in her room sleeping when this happened and that she does not know that any of this happened. By the time of the trial, C.W. was separated from his wife, M.W. She was not called as a witness by the Crown or Defence. I cannot speculate as to what she might have said, whether it would be favourable to the Crown or Defence, or whether she would have said, "I was sleeping so don't know". I accept the submission of both parties that I should draw no adverse inference from the failure of either side to call her as a witness.

[67] T.S. advises Det. Cst. McDermott that her E.A. Ms. R. was the first person she told about what her father was doing. I do not know much about T.S.'s relationship with her biological mother, but in her statement T.S. tells Det. Cst. McDermott that she had seen her mother the day before at the Children's Aid Society office. She did not tell her mother about any of these allegations, "Because there was other kids around". I also note that the incidents of June 10th had not occurred yet when she saw her mother the day before. C.W. testified that T.S. had court ordered 3-hour supervised visits with her biological mother once a month at the Children's Aid Society office. I have no evidence about why the Court made this order. Given these circumstances the fact that T.S. never told her mother about these incidents is irrelevant.

[68] After asking a series of questions to ensure that T.S. understands the difference between the truth and a lie (which she appears to), Det. Cst. McDermott asks if she has ever seen "Daddy's flower"? She tells him yes. T.S. says this happened when he took his pants halfway off in her room. He did not have his underwear on.

Det. Cst. McDermott: …And what did Daddy's flower look like?

T.S.: A long hotdog.

Det. Cst. McDermott: Okay. And was that hotdog – was it pointing down, or was it pointing up?

T.S.: Pointing up.

Det. Cst. McDermott: Okay. Um, and has Daddy's – where has Daddy's flower touched you?

T.S.: Right here [pointing to her vaginal area], and my other flower.

Det. Cst. McDermott: Okay. So, you pointed, again, to your – your vagina? Is that correct?

T.S.: Mmm-mmm. [answering yes]

Det. Cst. McDermott: Okay. And your flower, we determined earlier was your bum.

T.S.: [Nods yes]

Det. Cst. McDermott: Okay. Has that – has Daddy's flower ever gone inside any of your flowers?

T.S.: Nnn-nnn. [answering no]

Det. Cst. McDermott: No? Just on the outside of your flower?

T.S.: Nnn-nnn. [answering no] I don't understand.

Det. Cst. McDermott: You don't understand what?

T.S.: Like going in me.

[69] Det. Cst. McDermott then explains to T.S. what he means by "inside". T.S. advises that C.W. has not placed his "flower" inside her back or front "flower". When asked about whether C.W. had placed his "flower" in her vagina, T.S. says no, adding, "It's too small". T.S. agrees that her father's "flower" has only touched her flower on the outside. From the entire interview, it appears that T.S. is not alleging that there was any vaginal or anal penetration. T.S. does provide other details to Det. Cst. McDermott.

Det. Cst. McDermott: …And when he does touch you, what does he do?

T.S.: He goes right on top of me.

Det. Cst. McDermott: He goes on top of you? Okay. And then what does he do?

T.S.: And he just rubs, and whispers something?

Det. Cst. McDermott: What does he whisper?

T.S.: "Do you like it?" and I don't answer.

Det. Cst. McDermott: What is he doing that he's asking you if you like it?

T.S.: Being inappropriate.

Det. Cst. McDermott: How's he being inappropriate?

T.S.: [pauses] Well, he's saying that um…[pauses]

Det. Cst. McDermott: what's he doing?

T.S.: He's doing the same thing.

Det. Cst. McDermott: Okay, but what is the same thing?

T.S.: He goes on top of me.

Det. Cst. McDermott: Mmm-hmm. Anything else?

T.S.: Nnn-nnn. [answering no]

Det. Cst. McDermott: Okay. And when he's on top of you, where's his flower?

T.S.: On mine.

Det. Cst. McDermott: On your flower? Okay. Um, and how does it end T.?

T.S.: It never does.

Det. Cst. McDermott: Okay, but what makes Daddy stop doing that?

T.S.: Either I kick him…

Det. Cst. McDermott: So, either you kick him, or?

T.S.: Smack him.

Det. Cst. McDermott: Or smack him? And what does Daddy do, when you do that?

T.S.: He goes away.

[70] T.S. then goes on to agree that C.W.'s "flower" touched her "flower" only two times. She tells Det. Cst. McDermott, however, that she doesn't know how many times her father took pictures of her. In other parts of her evidence she said pictures were taken twice.

[71] T.S. also describes (without any prompting) an incident consistent with C.W. masturbating in her presence in the bathroom. Towards the end of the interview Det. Cst. McDermott asks a non-leading question, "Does Daddy do anything else that makes you feel uncomfortable?"

T.S.: He goes into the washroom, and then he watches these stupid videos.

Det. Cst. McDermott: Okay. And what are the stupid videos?

T.S.: About what a boy and girl do.

Det. Cst. McDermott: Okay. How do you know he's doing that?

T.S.: Cuz he watches them, in the bathroom.

Det. Cst. McDermott: Okay. Have you been in the bathroom, when he's watched them?

T.S.: Mmm-hmm. [answering nodding yes]

Det. Cst. McDermott: Okay. Tell me about that.

T.S.: He just watches – watches them, and then he really rubs his flower.

Det. Cst. McDermott: He rubs his flower? Has he ever touched you, when he's been in the bathroom?

T.S.: Nnn-nnn. [answering no]

Det. Cst. McDermott: No? Does he ever ask you to touch his flower, when he's in the bathroom?

T.S.: Nnn-nnn. [answering no]

Det. Cst. McDermott: No? Then how are – why are you in the bathroom?

T.S.: Cuz I was in the bathtub.

Det. Cst. McDermott: And what's going on, in these videos?

T.S.: They're in appropriate.

Det. Cst. McDermott: Okay. And are they adult people, in the videos?

T.S.: Mmm-hmm [answering yes]

Det. Cst. McDermott: Okay. Are there any kids, in the videos?

T.S.: [shakes head no]

Det. Cst. McDermott: No? And what's he looking at that on?

T.S.: On his phone.

Det. Cst. McDermott: On his phone? Okay. And where is he in the bathroom? If you're in the tub, where's he?

T.S.: On the toilet.

Det. Cst. McDermott: Okay. And he rubs his flower?

T.S.: Mmm-hmm. [answering yes]

Det. Cst. McDermott: And what happens, when he rubs his flower?

T.S.: It makes me uncomfortable.

Det. Cst. McDermott: Okay. And how does that end?

T.S.: When he's done going to the bathroom. And there's a lock on the bathroom too.

[72] T.S. says she has never seen the inappropriate videos and that her father does not watch them on her computer, only on his phone. T.S. tells Det. Cst. McDermott that her step-mother, M.W., was in their room at the time and doesn't know that the bathroom incident happened.

[73] T.S. also describes that she hears her father and step-mother being "inappropriate" after she has gone to bed. The evidence from C.W. is that the walls of their apartment are very thin and that T.S.'s bedroom was right beside his and his wife's room. For this reason, I accept that T.S. may well have heard them engaging in sexual activities. T.S. tells Det. Cst. McDermott that they have never been inappropriate in front of her. T.S. says that she feels safe living with her father as well as when she is at her grandparents' home.

[74] No further allegations are made by T.S. on the video interview with Det. Cst. McDermott. For the most part the Crown's case relies on the evidence of T.S. during the interview of June 10, 2016, which is when these events would have been freshest in her mind.

The Trial Testimony of T.S.

[75] T.S. testified using a close-circuit television room (CCTV) on June 19, 2017 in examination-in-chief and June 20, 2017 in cross-examination. She had turned 14 by the time she testified and was in Grade 8 and excited about going into high school next year. She said she likes gaming, cooking and art.

[76] She is living with C.W.'s parents and clearly loves living with her grandparents. She said her Grandma is fun, and she gets to ride her big bike. Her literal way of thinking was exemplified by her response when asked if she has any difficulties with courses at school, and she said, "Just difficulties understanding why do people have to take blood tests". When then asked about learning disabilities she explained that sometimes she doesn't "get it" and so people teach her. She said that sometimes she can't see how work is done because "stuff gets in the way and I don't know what I'm doing next". She later added "it doesn't bug me...I can do things that other people can't, like ride a bike or run or skip or jump".

[77] Just before watching the s. 715.1 videotaped interview with Det. Cst. McDermott in court, the following exchange occurred with T.S.:

Mr. Black [for the Crown]: And, I know we're going to watch that video today, and I understand you've seen it before, right?

T.S.: Yeah.

Mr. Black: But, before we do that I was hoping that we could talk about a couple of things that you talked about in your video before we watch it today, is that okay, are you comfortable with that?

T.S.: Mmm, I don't think so.

The Court: You don't think so?

T.S.: No.

Mr. Black: And why is that T.?

T.S.: Because I get very uncomfortable.

The Court: Sorry, I didn't hear you?

T.S.: I get very uncomfortable.

The Court: Oh, you feel uncomfortable?

T.S.: Mm-hmm [answering yes]

The Court: Is there anything we can do to make you feel more comfortable?

T.S.: No, it's okay.

After having some discussion with T.S. to explain that she does not need to be embarrassed, to ask her to just tell the full truth, and to let the Court know if she needed a break, she agreed to answer some questions.

[78] T.S. testified that the reason she had to go to the police was "because Daddy was being inappropriate…because he's being very inappropriate". When asked what was inappropriate, she said, "He was taking pictures of private parts that he shouldn't have been" and that they were of her private parts.

[79] Consistent with her video interview, T.S. did not want to name the private parts while testifying, stating, "I don't like saying those words 'cause they're bad." She said she calls them "flowers", and that flowers are "the boy parts and the girl's parts". When asked the correct word for a boy part she again said, "I don't like saying it because it's very inappropriate". When asked the correct word for a girl's "flower" she said, "I don't like it either". Following explanations to T.S. that is it acceptable to say the proper names in court, she testified that the girl flower is "a vagina". She said she thinks of a boy's part as "a hotdog" but calls it a "boy flower", and it is on the front of the body in the middle of the body. She did not use the word penis.

[80] When asked why T.S. had told her E.A. Ms. R. about what had happened with her father, T.S. said, "Because I didn't want to take it anymore". In cross-examination she said that when she told Ms. R., she was hoping Ms. R. would tell "Jackie" from the Children's Aid Society about what her dad was doing. T.S. testified that she had seen her June 10th video statement with Det. Cst. McDermott and that she told him the truth in the interview. She confirmed this again after watching it in court. She said that the things she talked about with the officer had happened the day of the interview "and the other day".

[81] T.S. confirmed that whenever she spoke of the room where the incidents happened, she meant her bedroom. She would change her clothes quickly because she didn't want her father to come in and see her private parts, "because it's not okay for people to look at it".

Mr. Black: And, how did you feel when your private parts were being looked at, how did that make you feel?

T.S.: Really mad.

[82] T.S. explained that on the morning when her father was taking pictures of her that he was "texting them to someone". When asked what made her believe he was texting them, she said "because I saw him do it". She didn't seem to understand what she was being asked to describe. After I explained to T.S. (using an unrelated example) that she was being asked to describe exactly what steps she saw him doing, she again said, "Because I saw him texting somebody the pictures and sending them to the person…I saw him texting". This is another example of T.S.'s very literal thinking, in effect testifying "I know he was texting because I saw him texting". She appeared to be unable to understand she was being asked to describe how he manipulated the phone to lead her to believe he was texting. I do not conclude that T.S.'s inability to describe why she knew her father was texting undermines her credibility. It does leave me, however, with a challenging issue as to how to assess or weigh what she believes she saw.

[83] T.S. testified that she was on the bed while her father was standing on the floor with his phone in his hand. When her father was using the phone T.S. could not see the screen. She said that when her father was taking the pictures of her he touched her legs to make them open and gestured that he was using his hands to spread her legs wide. This was a significant detail that appeared to be a genuine memory. In cross-examination T.S. added that while her father did not say anything to her, she told him to "back away" after she kicked him. She said this in a normal voice, not yelling. She said he was really bugging her and she was getting mad so that's why she kicked him. After that he stopped. She agreed that when he came in that morning he left the door open and it was wide open when he was taking the pictures of her.

[84] When T.S. was cross-examined she said that she knew her father was taking pictures of her with his phone because she heard a clicking noise. This is contradicted by C.W. when he testified that he had turned off the sound feature so that there would be no click when a photo was taken. I do not know from the police analysis of the phone whether the click noise function was turned on or off. I do not know which evidence is correct. T.S. did not know how many photos had been taken but thinks it was more than once. She just wanted it to stop. Her father left the room and she got dressed.

[85] T.S. says that after her father left the room she put on her shirt and regular pants and socks and underwear. Those were the clothes she wore to school for the day. It is important to note that on the video interview with the police she is wearing a dress, and not the long pants she appeared to be describing in her trial testimony. When asked about this apparent contradiction in cross-examination she said she was wearing shorts under her dress. She said pants can be short or long. Not much turns on what kind of pants T.S. was wearing, but it does demonstrate a possible lapse in memory.

[86] In her interview with the police T.S. had said when she took her pajamas off on the morning of June 10th that she didn't have any underwear on because there was no clean underwear the night before. In cross-examination she says she was wearing underwear but also said, "I don't really wear underwear 'cause it bugs me…it rubs on my – my skin because my skin's sensitive." She then said she did not wear underwear under her pajamas the night before June 10th because there was no clean underwear available. She later says, however, that she did have clean underwear to wear under her shorts and dress to school on June 10th which she got from her drawer. So again, there is some confusion about whether she had clean underwear available to her or not. This contradiction is not of great significance, but I consider it to be another part of T.S.'s evidence that was confusing.

[87] T.S. says she was upset about what her father had done that morning and believes she looked mad when her grandfather picked them up. She said she was mad because, "He shouldn't have done that in the first place. And he wouldn't have got in trouble." T.S. agreed that she is often happy when being picked up by her grandfather and was different this morning. She stayed mad at her dad right up until she told Ms. R. what he had done to her. T.S.'s grandfather never testified, so I don't know how she appeared to him. C.W. testified that she was acting like her usual happy self that day and there was nothing out of the ordinary.

[88] T.S. was asked about what she meant in her video when she said "touching" and "rubbing" her flower and what the difference was, T.S. said, "when you touch something it's just touching it and when you're rubbing it, it's like rubbing a scab". When asked how long the rubbing was she said, "two minutes". No other details were provided about the touching.

[89] The incident which T.S. describes in the bathroom is consistent with having seen her father masturbate while seated on the toilet and watching an adult video on his phone. She testified that the bathroom incident happened before the times he took pictures of her in her bedroom. T.S. never uses the word masturbate in describing it during the interview or at trial. I do not know whether she knows that word. T.S.'s description (during the police interview) of her father really rubbing his flower, and the details provided at trial are very compelling. At trial T.S. said her father was rubbing his "flower" for three minutes. She did not remember whether he said anything while doing that. She said she could see him doing it because the shower curtain was not pulled out for her to have privacy. In cross-examination T.S. said the shower curtain was not broken or ripped, it was just left open. She was already in the bathtub when C.W. opened the door and came into the room. There was only one bathroom in the apartment. She didn't think about closing the shower curtain and didn't tell him to get out even though it made her mad that he was there. T.S. was still in the bathtub when he flushed the toilet, got up and left. Although he had his cell phone with him, C.W. did not try to take any pictures of her.

[90] T.S. could not see what her father was watching on his phone but could hear that it was an "inappropriate" video. She testified that it bothered her. Neither Det. Cst. McDermott nor the lawyers at trial asked T.S. to describe in any further detail what she was hearing to make her think the video was "inappropriate".

[91] T.S. was not staring at her father while he was on the toilet, she was looking in a different direction. She was asked further details about what she saw C.W. doing.

Mr. Fraser: While your dad was still on the toilet watching the videos, was he doing anything else?

T.S.: No.

Mr. Fraser: And, can you tell what he's doing with his hands while he's sitting on the toiler, do you remember what your dad was doing with his hands?

T.S.: he's rubbing his flower.

Mr. Fraser: Oh okay. Okay

T.S.: His hotdog flower.

Mr. Fraser: Okay….do you…have a sense of how long that happened that he was doing that?

T.S.: Three minutes.

Mr. Fraser: Three minutes, okay. Okay. And, after he stops doing that does he still stay on the toilet or does he get up right after that?

T.S.: He gets up after that.

Mr. Fraser: Okay. But he flushed the toilet anyway, right?

T.S.: Yeah…'cause he didn't want to see all that poo.

T.S. then does on to describe that she is sure she smelled a "smelly poopy smell" that wasn't there before her father came in. C.W. closed the door when he left the bathroom.

[92] When asked in cross-examination to describe the first time her father had done anything sexually inappropriate, T.S. said, "I forget." She said the first time her father took inappropriate pictures of her was "on a Monday" in the morning, a school day, when it was still dark outside. It happened in her room. T.S. was on her bed and C.W. used his hand to open up her legs to take the photos. He did not touch her in any other way. C.W. did not get on the bed. He stopped doing it when she firmly told him "stop it" at a normal volume. M.W. was home when it happened but T.S. does not believe she woke up and heard what was going on.

[93] During cross-examination T.S. was asked about the incident when she said her father got on top of her on the bed. T.S. said, "His flower was touching mine." At some point T.S. and C.W. were both standing and his "flower" was touching hers. She got off the bed because he told her to stand up. She clarified that his "flower" was touching her "booty" and at some point it touched her other "flower". C.W. did not take any pictures that time. The situation stopped when she told him, "No, leave me alone." She said this firmly but at a normal volume. He then left her room. T.S. said she didn't tell him to stop sooner, "because he didn't want to stop." This happened early in the morning on a school day. From what she saw or heard she believes M.W. was asleep because she wasn't walking around or making noises in the house.

[94] T.S. testified in cross-examination that her father never talked to her or said anything about it after he did something inappropriate to her. He never told her not to tell anyone about what he was doing with the camera or the "flowers". C.W. never said that something bad would happen if she told anyone. He never offered to buy her presents to keep it a secret. The Defence submitted that this is inconsistent with how an offender would behave. While these things do occur in many abuse cases, I do not accept that their absence is indicative that nothing occurred. A parent may know their child well enough to know it is not necessary to tell them to keep it a secret. In other cases, sexual predators presume that a child with exceptionalities won't be believed. It is not helpful to consider what a stereotypical offender would say to keep a child quiet. The absence of C.W. saying these things tells me nothing about what he did or did not do to T.S.

[95] In an attempt to provide evidence of a motive for T.S. to fabricate these incidents, C.W. testified that she was angry with him when he did not agree to buy her a cell phone. T.S. had asked him two or three times to get her a cell phone but he told her that she was still too young. T.S. was angry, made a "huffing" noise, turned around and stomped her feet as she walked away. C.W. said this was 6 months before she disclosed the sexual abuse. I accept that she wanted a cell phone and couldn't get one and was angry about it. When asked in court about whether she had ever played games on a phone, she said in examination-in-chief, "No, I don't have a phone 'cause my stupid Dad wouldn't get me one". In cross-examination T.S. agreed that she had called him her "stupid Dad" because she was mad at him about not buying her a cell phone. Taking into account T.S.'s nature and the entirety of her evidence, however, I reject the suggestion that T.S. would wait for 6 months and then concoct these serious allegations against her father because she couldn't get a cell phone months before.

[96] The Defence also tried to establish that T.S. had another motive to fabricate the allegations. It was argued that T.S. made up the allegations because she didn't like her step-mother, M.W. T.S. agreed that M.W. was mean to her and said things to T.S. like, "it's not rocket science". This was when she was doing her homework (and so she would do homework at her Grandma's instead). M.W. would say things to T.S. like, "You know that word, you read (or said) it yesterday" which hurt her feelings. T.S. said, "And I was thinking in my head, 'Stop being so mean.'...She said it every single day, I didn't like it. It was hurtful." T.S. added, "I was thinking, why do you have to be such a mean bully." She agreed that she had complained to her teachers about it, which is consistent with Ms. R.'s evidence. T.S. was asked if M.W. made her not want to live there anymore to which she responded, "Mmm, yeah." T.S. said she didn't tell her father about it but did tell her Grandma. She thought her father would take M.W.'s side. T.S. said that M.W. would tell her father things that would get her in trouble for no reason. T.S. added, "I think of M.W. as a little brat." T.S. agreed that M.W. didn't seem as happy or as nice to her as other adults.

[97] When asked about M.W. being mean and her teachers being nice, T.S. volunteered, "My real mom is super nice…she's wonderful, nice and kind and she doesn't say anything mean to me at all. She always says, 'I love you'." She later added, "…she does lots of things better and nicer. She can beat M. without a doubt. I love her this much [gesturing with her hands wide apart]." T.S. agreed that on the day before her disclosure to Mrs. R., when she visited with her mother at the Children's Aid Society that she talked with her mom about maybe going to live with her. Sometimes she wanted to live with her mother and sometimes she didn't.

[98] T.S. was asked about her paternal grandparents, whom she now lives with. She said, "They're great. It's like being on vacation with them. It's not being yelled at for anything that I do…without being yelled at for…no reason." It is clear from all of her evidence that she loves them very much. T.S. agreed that her Grandma is really nice. She described that her Grandpa is nice too, but sometimes he gets in a bad mood and doesn't talk. While living with her father, T.S. would go to her grandparents every morning she had school. She would often stay overnight with them on Wednesdays. In cross-examination, T.S. agreed that when she told Ms. R. about what her father had done, she expected she would be able to go live with her grandparents and no longer have to live with her dad and M.W.

[99] When T.S. told Ms. R. what her father had done she did think he was going to get in trouble. She didn't have in mind what kind of trouble. T.S. agreed again with the suggestion, "And, one of the things that would take place is you'd probably get to live with your grandparents and not have to live with your dad and M.W. anymore." She was asked,

Mr. Fraser: T., the things you told us that you told Ms. R. about your dad, the things that he was doing to you that were inappropriate, okay, did you make that up so that you could go live with your grandparents and not live with your dad anymore?

T.S.: No.

Mr. Fraser: No? Okay. Okay. I have to be fair to you and ask straightforward questions like that. So, you didn't make up the stuff about your dad just so that you could go live with your grandparents?

T.S.: No.

[100] It is clear to me that T.S. much prefers living with her grandparents than with C.W. and M.W. It is also clear that she does not like M.W. very much and likes her own mother much more. T.S. expected to be moved to live with her grandparents once she told about what her father had done to her. Having assessed her evidence, I reject the suggestion, however, that T.S.'s preference to live with her grandparents motivated her to lie about her father. I believe her when she says she did not make up the conduct by her father to accomplish this.

[101] It is difficult to know what to make of the "babies in a box" evidence. This is what T.S. believes she saw one to two months before she testified in June 2017. T.S. agreed in cross-examination, that she had been upset one day when she was in the car with her grandfather driving in Oshawa and she saw babies lying in a box as they drove by. They drove by really fast and she doesn't think her grandfather saw the box, just her cousin who was also in the car. She was sitting in the back seat behind her grandfather who was driving. T.S. believes there were at least seven little human babies who were alive and moving their legs and arms. T.S. pointed to the box and said, "there's babies in the box". At dinner that night she asked her grandfather why he didn't stop for that box of babies. She says he didn't say why. She testified, "What kind of person does that to poor, innocent, babies?" Her grandmother had asked if she meant kittens, and she said no, it wasn't kittens, they were babies. She still believes they were babies. While common sense dictates that what T.S. believes she saw is not possible, there is no evidence to put it in context and weigh it. Her grandfather never testified, so we don't know what he would have said about what was actually by the side of the road, if he even saw it. The Defence submits that this evidence demonstrates that T.S. lacks a "well-developed world view" and that she held a mistaken but firmly held view that is distorted. It is argued this shows that T.S. forms firm beliefs without having the ability to exercise some self-critical thought. Just as with eyewitness identification evidence, while T.S. is very sincere in her belief as to what she saw, she is obviously mistaken. It does not, however, lead me to believe that T.S. imagines things that didn't happen and is therefore making up what happened with her father. We don't know if she saw a box of dolls, a box of kittens, or something else.

[102] In closing submissions, Defence Counsel argued that with the way T.S. moved and bounced around in the close-circuit room that I should find it would have been very difficult for her father to get her to stay still to take photographs of her vaginal area and sexually assault her. I reject this submission. I have no evidence as to how much T.S. moves around in her everyday life, but having watched how quiet and subdued she was on the video interview with the police, I conclude that how much she moves will depend on the circumstances. I do not accept the argument that it would have made it impossible to sexually assault or photograph her.

[103] Due to T.S.'s exceptionalities, it is tempting to ask how she could have known of the sexual matters she describes unless they had actually happened, much as one would with a much younger child. The problem with this approach is that I have no evidence about the extent to which T.S. has learned about sexual matters from sexual education in school, her family, her peers or the media (such as her evidence about learning things from the news). I am mindful that while she functions as an 8-year-old, she attends school with young persons who are teenagers and so, could be exposed to sexual information in many ways. Given her chronological age, there may be innocent explanations for her sexual knowledge.

[104] The challenge with T.S.'s evidence is that her exceptionalities frequently limit her ability to describe details. The example described earlier was being unable to describe why she believed he was taking photographs of her and texting. While absolutely and sincerely convinced that these things happened, T.S. never saw the screen to see that photos had been taken. Similarly, she never saw his phone to confirm that her father was watching an "inappropriate" video in the bathroom, although she is convinced of it because of what she could hear. The Defence submitted that T.S.'s description of events did not have an "air of reality" because of the lack of details. I do not agree. I am left, however, with a simple allegation such as "he took my picture" without an ability to weigh the evidence to determine if T.S. incorrectly perceived what she believes happened.

[105] I observe that T.S. did not embellish her allegations and was fairly consistent between her statement to the police and her evidence in court. She was open and frank with both lawyers and readily agreed to many of the suggestions put to her. I found her to be a very believable witness, although I have some concerns as discussed in these reasons.

The Items Found on C.W.'s Cell Phone

[106] Two unusual items were found on C.W.'s cell phone. One was a poor-quality image of a vagina (Exhibit 4). The second was a photo of a document describing "Daddy Dom, Little Girl Submissive" role playing behaviour (Exhibit 3). The Defence did not challenge the admissibility of these, but rather argued it would be a matter of what weight to attach to them. So, there was no weighing of probative value versus prejudicial effect. The Crown correctly submitted that these items should not be used as evidence of bad character/propensity, and I specifically disregard any such inferences. The Crown argued that the only proper use of these items was to establish that C.W. uses his phone to store sexually-related material. While this may be so, I caution myself to avoid the prohibited reasoning that suggests that if C.W. had sexual images of someone else on his phone, that he must have taken photos of T.S.'s vagina. It is my view that the only proper use to be made of these images is with respect to assessing C.W.'s credibility at large in the way described below. I will discuss these images in further detail and the very limited use to which I have considered them.

[107] Detective Constable Jeff Lockwood is a member of the Internet Child Exploitation Unit with the Durham Regional Police Service. He provided evidence about the contents of C.W.'s Samsung cell phone, which had been seized from C.W. by Det. Cst. McDermott of the Sexual Assault Unit.

[108] It is an admitted fact that C.W. was the owner of the phone seized and examined by the police. C.W. had only owned the phone for 4 days before it was seized on June 10, 2016. It is admitted that it was a brand new "out of the box" phone that had never been used by anyone before C.W. C.W. testified that he lost his previous cell phone in a muddy lake with a lot of weeds when he was kayaking with a friend named "John" whose last name he doesn't know. This happened one and a half to two weeks before he bought the new cell phone. "John" did not testify. I can't speculate whether "John" could have confirmed the loss of the previous phone. I do not draw any adverse inference from the failure to call this witness. There is no evidence as to what data and images were on the previous phone which C.W. had owned for 8 months.

[109] Det. Cst. Lockwood utilized a data acquisition software programme called "Mobilyze" which enables the police to acquire/extract basic data from a cell phone. This particular software does not go as deep in extracting information as other software programmes utilized by the forensic side of police services (such as the Cellebrite software). This software can only access/extract photographs, videos and text messages that are proprietary items on the cell phone. This means that 3rd party applications (apps) such as KICK or WHATSAPP are inaccessible during the extraction. Data for apps such as Skype chats and images would not be accessible with this software. Det. Cst. Lockwood explained that using the Cellebrite software would deprive someone of their phone for about 6 to 10 weeks. Since Det. Cst. McDermott was only looking for photos on the phone and it was a very new phone, he decided to only use the Mobilyze software instead.

[110] The extraction process took 4 minutes. A single page from Det. Cst. Lockwood's report, entitled "Device Details" was entered as Exhibit 2. It provides a summary of the types of data retrieved. 21 phone calls had been made with the first phone call being made on June 6, 2016 at 9:14 p.m. 196 text messages had been sent and received, with the first commencing about the same date. 21 images, including photographs and internet images were located. There were 166 apps on the phone, including file sharing or conversation apps such as Skype. There were two file-sharing apps to allow files to be sent to other users. These apps were Media Share and File Share Server App.

[111] Det. Cst. Lockwood was not aware of the details of the investigation into C.W. He was not aware that it was alleged that the phone had been used to take a photo of the complainant during the commission of an offence earlier the same day it was seized. The officer explained that he does not want to be biased in terms of the images being seized from the phone; he wants to extract everything and then turn it over to the investigator to do his or her own investigation.

[112] Exhibit 3 is the photograph of typed text located by Det. Cst. Lockwood on C.W.'s cell phone. It had not been deleted by C.W. before the phone was seized. The officer described the text as "B.D.S.M." type behaviour. It is a photograph of text which reads as follows:

The Daddy Dom

Some men want to dominate their women. They want to own them and have them do as they are told, particularly in the sex department. But what happens when that man is more of a nurturer than a sadist? He will often fall into the role of "Daddy Dom". Daddy Doms put their babygirl's needs at the top of their priority list. A Daddy Dom will do everything he can to help his little girl be the best person she can be. He may spoil her, but he doesn't let her get away with being a brat. Sometimes this means he will punish her, not for the enjoyment of the punishment, but because it is for her own good. A Daddy's little girl is his pride and joy and he does what he can to make her feel special and cherished.

The Little Girl Submissive

The little girl submissive worships her Daddy Dom. She will do anything to please him because she knows that he makes it his mission to care for her and to protect her. Since she is secure in his feelings for her she trusts her Daddy and submits to him completely. The little girl puts her Daddy's needs first and pleasing him is of the utmost importance to her. In return he fulfills her needs and disciplines her when she needs it.

[113] As indicated earlier, I direct myself to be very cautious about any use to be made of Exhibit 3 as it has the potential of being bad character evidence. The Defence submits that this is adult role-playing sexual behaviour since it refers to "women" and that it is irrelevant to this case. There is no evidence that T.S. ever became aware of this document or that her father spoke to her about these issues or asked her to role play during the sexual behaviour. There is no evidence that it was used to groom his daughter. The Crown tried to suggest that C.W. had T.S. call him "Daddy" to relate it to this type of role-playing, but I do not accept that, as it is normal for a child to call their father "Daddy". While its contents might be suggestive of motive, I disregard it. If I had been asked to rule on its admissibility, I may well have found that the prejudicial effect of this exhibit outweighs its probative value.

[114] Det. Cst. Lockwood also located a close-up image of a vagina (Exhibit 4 which is sealed by the Court). It was recovered from the deleted section of the phone. Det. Cst. Lockwood could not determine how long it had been there. C.W. testified he had received it at some point in the 4 days after he bought the new phone. Det. Cst. Lockwood indicated that the image had been on the phone at some point and then deleted by a user on the phone. It was a file on the phone in the deleted cache which could be overwritten once the phone overrides it (which happens randomly). No one using the phone would have been able to view it. This image was made Exhibit 4 in this trial.

[115] This photograph is a close-focus image of the vaginal region of a female person with a person's finger touching the top part of what is seen. The image is of poor quality and grainy. The Defence argues that it is clearly the vagina of an adult woman posing and touching her clitoris. I do not agree that this is clear at all. While I can make out the vaginal area and labia, and agree that the finger is in the general area of the clitoris, due to the nature of the image, I cannot see exactly what part of the vaginal area is being touched. It is not clear to me whether the finger belongs to an adult or child, male or female. Also, I do not see any pubic hair. I have no evidence about whether T.S. had pubic hair at the time she claims the photos were taken by her father. Due to the limitations of the photograph, it is impossible to say whether it depicts the vaginal area of an adult or child. For completely understandable reasons, the image was not shown to T.S. to comment upon when she testified. By stating this, I am in no way suggesting that it should have been shown to this child. There is no reason to believe that T.S. would know what a photograph of her vagina would look like. There is no electronic evidence accompanying the photo to determine the date or time it was taken. The Crown concedes that this image has limited weight and I afford it little weight.

[116] One might suggest that the absence of photos on the cell phone (that can be confirmed to be of T.S.'s vagina) is evidence that T.S. cannot be relied upon when she says her father used his phone to take those images. In this case, however, absence of proof does not equal proof of absence. While positive proof of this would have been supportive of her evidence, the inability of the police to locate any such images does not mean they were not taken. It does not prove that T.S. is making up the fact that her father took photos of her. The analysis of the phone was not done at a depth that would confirm or deny that any such images were taken using the many types of apps that were on C.W.'s phone. For example, images could have been taken and sent using Skype, Media Share or other file/image sharing apps which the police were unable to access using the "Mobilyze" software. Similarly, text messages could have been sent using these apps that the police could not examine. Of course, these possibilities do not amount to any evidence that proves guilt.

[117] C.W. denies that the single photo of the vagina on his phone was of T.S. He gave evidence hoping to explain why in the 4 days he had the phone, he coincidentally happened to end up with an image of a vagina and the photo of the "Daddy Dom, Little Girl Submissive" document. He claimed that he knew a woman named "Debbie" or "Deborah who was "just a friend" on Facebook who had sent him both. He claims they met on Facebook through a mutual friend. She lived in Michigan. They had been speaking on Facebook for about 6 months but had never met in person and never video-chatted or live-streamed. The relationship escalated and she wanted to "hook up" and live together, but nothing ever came of it. C.W. testified that she was "into" the "Daddy Dom" "kind of stuff" and he didn't know what that was so she sent the description to him one night after they spoke on Facebook about things she liked to do sexually. When he read it he thought it was strange or different, but he didn't delete that image and claims he "forgot about it". C.W. testified that the two sexual images were sent in the 4 to 5 days that he had the new phone. He claimed that he was honest with his wife, M.W., about everything, however, she never found out about the situation with the other woman online. Since nothing was going to happen with Debbie, he never told her, "she never asked about it and I never elaborated on it". One wonders how she would know to ask about it at all, and if he never told his wife there would be nothing to "elaborate" on. I accept the Defence submissions, however, that if all of this is true, C.W.'s infidelity to his wife does not mean he is a sex offender.

[118] C.W. said he deleted the photo of the vagina because he didn't want T.S. to see it if she picked up his phone. While that is possibly true, it is inconsistent with leaving the "Daddy Dom, Little Girl Submissive" document where she could see it. He testified that T.S. would be capable of reading it but wouldn't understand what all of it meant. C.W. said that T.S. is a pretty smart girl, but doesn't always comprehend what she reads and often needs someone to explain to her what she has read. This is consistent with the evidence of her E.A. Mrs. R. One would think that T.S. would ask her father a lot of questions if she read the Exhibit 3 document. In cross-examination C.W. agreed that if T.S. read it she would ask about it, but said "I actually forgot all about this". He testified that he forgot about it 2 days after "Debbie" sent it. In cross-examination he reluctantly conceded that he consciously chose to not delete it. It's hard to imagine that he would have forgotten about having received material of this nature when he was arrested for sexual offences within 4 days at most (given when he got his new phone). C.W. did not seem to be concerned at all that his wife might come across it, and testified that M.W. never used his phone as far as he knew. As indicated earlier, he did not password protect his phone.

[119] I accept that people become engaged in online sexual relationships, so it is not impossible that a woman sent these items to C.W. "Debbie" never testified to confirm any of C.W.'s evidence. I do not know from the evidence why she wasn't called. Even if it was not possible for the Defence to call her as a witness I find it very odd that the Defence presented no electronic evidence from Facebook confirming the date and time that these items had been received by C.W. and no Facebook messages confirming this online relationship. Presumably, C.W. could access this information from his Facebook account. There was no evidence from C.W. explaining why this could not be done. I am mindful that I am not to reverse the burden of proof and that C.W. does not need to prove his innocence. I find C.W.'s explanations for the two images on his phone, however, to be suspect and a convenient explanation. It seems an unlikely coincidence that he would have received these items from "Debbie" in the 4 days he had owned this phone, then be arrested on June 10th and yet not be able to retrieve the electronic evidence to confirm their source. This undermines his credibility at large. The fact that I have trouble accepting C.W.'s explanation for these images does not, however, translate into proof that the image in evidence is of T.S.'s vagina. It may or may not be. Given the limitations of the photo, this is impossible to determine and therefore, I cannot use it as evidence which supports T.S.'s version of events. I do not rely upon that photo as proof of guilt.

C.W.'s Denial of the Allegations

[120] C.W. testified on June 20, 2017. He is 43 years old and drives a forklift truck, having worked at the same company for 11 years. He has a criminal record from 2001 for four counts of unauthorized possession of weapons and received a suspended sentence and probation for two years. I ignore the criminal record with regard to bad character evidence and place very limited weight on it with regard to C.W.'s credibility since it is not a crime of dishonesty.

[121] T.S. had been living with C.W. for 6 years by the time these allegations arose. He aptly described his daughter as "happy-go-lucky". When he first got her from the Children's Aid Society she didn't talk very much and stayed to herself all the time. Through therapy she learned to open up more. By the spring of 2016 their relationship was good, they were getting closer and he was happy about that.

[122] C.W. would have been married to M.W. for 5 years by September of 2017, however, at the time of the trial they were living separately, while still trying to work the marriage out. C.W. never noticed anything out of the ordinary between his wife and T.S. M.W. would help T.S. with her homework.

[123] When these allegations arose, C.W. was living with M.W. and his daughter, T.S. in a two bedroom apartment in a house. The house had been converted into three separate apartments and they were living on the main floor.

[124] The Defence wants me to infer that anything happening with C.W. in T.S.'s room would have been overheard by M.W. T.S.'s bedroom was right beside the one shared by C.W. and M.W. C.W. said that a person would not have to be yelling to be heard in the next room. There was no soundproofing between the walls of the house and C.W. could clearly hear the couple upstairs when they were speaking. C.W. could hear T.S.'s television in her bedroom and could hear T.S. when she was talking out loud as she played with her toys. T.S. confirmed in her testimony that there were times when C.W. or M.W. would tell her to turn the sound down on her T.V. or DVD player. She agreed that the walls were thin and didn't block sound very much. She could overhear the adults in the next room talking at a normal volume. T.S. could hear noises from the other room and could hear C.W. and M.W. being "inappropriate" in their room. In re-examination T.S. said she had told Ms. R. about hearing them making those noises, but didn't tell anyone else because she didn't want other people like kids to know.

[125] C.W. testified that he usually had his cell phone setting with sounds turned off while taking photos so there would be nothing to hear such as a click. I am also mindful that T.S. said her father didn't say anything at all to her during most of the alleged incidents and on one occasion whispered, "do you like it?", so it is not clear that there would have been anything to overhear besides C.W. and T.S. moving in the room. C.W. testified that M.W. was sleeping on the morning of June 10th when he woke T.S. up. I do not know how heavy a sleeper M.W. is and there is no evidence that she even woke up that morning. It was open to either party to call M.W. as a witness but she did not testify. At the urging of both lawyers, I draw no adverse inference from the failure to call her. I cannot speculate as to what she might have heard or not heard.

[126] As indicated above, C.W. claims that the typical routine on a school morning was that he would wake up his daughter at 6 a.m. by going to her door and calling her to get ready for school. He would then go to his room and get ready for work. M.W. would still be sleeping in their bedroom. There was no reason for M.W. to be up because on the days she worked she would leave around 9 or 10 a.m. Around 6:15 to 6:20 a.m. C.W.'s father would pick up C.W. and T.S. He would drop C.W. at work around 6:30 a.m., which was just down the road from their home. C.W.'s shift did not start until 8 a.m. but he would sit around with co-workers and chat until then. He would then drive T.S. to his home where she would spend time with her grandmother and grandfather until she caught the school bus at 8 a.m. at the stop right across the street from their home. C.W. seemed anxious to convince me that he would only have 15 to 20 minutes with T.S. in the morning before his father arrived. The incidents described by T.S. when she alleges her father took photos of her did not sound like they would have taken more than a couple of minutes. It is not clear to me what time of day the other alleged incidents took place. I never heard from C.W.'s father to confirm or deny what time he would pick his son and granddaughter up weekday mornings. I do not draw any adverse inference from the failure to call C.W.'s father, but am left with only C.W.'s evidence on this point.

[127] C.W. claimed that on the morning of June 10, 2016 that nothing out of the ordinary happened with T.S. When he got T.S. up M.W. was still sleeping. He said T.S. seemed happy and was "happy-go-lucky" when she would go to her grandpa's car. There was nothing to suggest she wasn't her normal self that day.

[128] C.W. had owned his cell phone for only 4 days when the police seized it. It was not password protected. He was arrested on June 10, 2016, the same day that T.S. had come forward to complain about her father using that phone to photograph her vaginal area. I accept C.W.'s evidence that he had no suspicion his cell phone would be seized and he was not expecting the police when he returned home after work that day. C.W. testified that he only owned one cell phone at a time. There is no evidence that causes me to disbelieve this.

[129] C.W. denied that he had taken pictures of any part of T.S.'s naked body. He also denied ever masturbating or touching himself inappropriately in T.S.'s presence. C.W. denied touching any part of her body with his penis and denied using his hand to rub her vagina or buttocks. He denied ever placing his penis on her buttocks or vagina. C.W. denied that anything even vaguely sexual had ever occurred with his daughter under any circumstances.

[130] C.W. denied that there was ever any occasion when he was in the bathroom using the toilet while T.S. was taking a bath. Since they only had one bathroom, if he had to use it he would either wait until she was done or go across the street to the […]. C.W. denied being in the bathroom watching adult videos, although he agreed his phone had internet access. He denied ever watching pornography in his daughter's presence. C.W. testified that T.S. was old enough to get her own bath ready and change her clothes so he never went into the bathroom with her at any time.

[131] I have identified those areas of C.W.'s evidence that cause me concern. Having said that, I cannot articulate why I would reject his denials of the allegations made by his daughter, apart from her being so believable. Again, I remind myself that it is not appropriate to convict based on whose evidence I prefer; there must be proof beyond a reasonable doubt in order to convict.

Conclusions

[132] I found T.S. to be a compelling, credible, sincere and convincing witness. Having assessed all of the evidence at trial and on the video interview, I believe that she probably (and very likely) provided a truthful and accurate report of the things she says her father did to her. This does not, however, amount to proof beyond a reasonable doubt.

[133] I am guided by Justice Rosenberg's comments in Levert, supra, when considering the evidence of T.S. in this case. There is nothing in the evidence before me to suggest that with her challenges T.S. is unable to recall what C.W. did. I must carefully consider her evidence, however, because it is the sole foundation of the Crown's case. While T.S. had some difficulties describing what C.W. did to her, I do not find her evidence to be unreliable simply because of her exceptionalities. In fact, her exceptional nature makes the way she gave her evidence more believable at the same time as making it more challenging to weigh and assess.

[134] There are sufficient concerns, however, about the reliability and weight which I can attach to some of the things T.S. said in her police interview and at trial, to prevent me from being able to arrive at a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence in this case. The evidence in this case does not meet the J.J.R.D., supra, standard. Therefore, I am left with a reasonable doubt and must acquit C.W.

Released: October 12, 2017

Signed: "Justice Susan C. MacLean"