WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

Court Information

Ontario Court of Justice

Date: October 16, 2017

Court File No.: Regional Municipality of Waterloo Information #165 241

Between:

Her Majesty the Queen

— and —

R.P.

Before: Justice C.A. Parry

Heard on: April 3, April 12, and September 11, 2017

Reasons for Judgment released: October 16, 2017

Counsel:

• Stephanie Marple and Anita Etheridge — counsel for the Crown
• Bruce Ritter — counsel for the accused R.P.

PARRY J.:

1. OVERVIEW

[1] This judgment pertains to the trial of R.P. ['the accused'], who is the brother of D.N. [the complainant's grandmother], the uncle of M.N. [the complainant's mother], and the great uncle of A.N. ['the complainant'].

[2] The accused stands charged with committing four offences against the complainant, all of which took place several years ago. Those offences and their dates of commission are as follows:

1. 1 May 2011 to 30 June 2011: sexual assault on A.N., contrary to s. 271 of the Criminal Code;

2. 1 January 2012 to 30 June 2013: sexual assault on A.N., contrary to section 271 of the Criminal Code;

3. 1 May 2011 to 30 June 2011: touching for a sexual purpose A.N., contrary to s. 151 of the Criminal Code; and

4. 1 January 2012 to 30 June 2013: touching for a sexual purpose A.N., contrary s. 151 of the Criminal Code.

[3] Essentially, the sexual assaults and touching for a sexual purpose are two different statutory descriptions of the same offending behaviour. The May 1 to June 30 2011 charges involve a single discrete event, which can be referred to as the shopping incident. This incident is alleged to have occurred at the home of the complainant's grandmother, while the complainant's grandmother and mother were out shopping and the accused was left alone in his sister's apartment with the complainant. The 1 January 2012 to 30 June 2013 charges involve numerous events that are alleged to have occurred at the home of D.N., when she was babysitting the complainant and her sister. These alleged events can be globally referred to as the babysitting allegations. Both the complainant's sister and grandmother were allegedly present for much if not all of the babysitting events.

[4] The accused pleaded not guilty to the offences before the court. The Crown called two witnesses, the complainant and her mother. The Crown did not call the complainant's grandmother, despite the fact that she is alleged to have been in the room during the vast majority of the alleged offending conduct.

[5] Testifying in his own defence, the accused alleged that the shopping incident involved inappropriate conduct by an over sexualized and sexually curious seven year old, which he quickly rebuffed. The accused further alleged that the alleged babysitting sexual assaults never occurred. The accused did not call any other evidence.

[6] The verdict in this case comes down to an assessment of the reliability and credibility of the witnesses called by the parties when assessing whether or not the Crown has satisfied its burden of proving the case beyond a reasonable doubt.

[7] I will now turn to a brief summary of the evidence.

2. THE UNCONTESTED HISTORICAL BACKDROP

[8] The accused and his family hail from Newfoundland. He first came to Ontario with his family as a child and has moved back and forth from Ontario to the Maritimes over the years. In 2007, he came back to Ontario and has remained here ever since. When making this final return, he moved in with his sister, D.N.. He was living in an apartment with D.N. at the time of the alleged shopping incident. He had his own room in this apartment. The municipal address of this building has changed over the years, and can be described as either H[…] Road or B[…] Street, in the City of Kitchener. It is in fact a complex of low-rise buildings situated on the corner of H[…] Road and B[…] Street.

[9] The complainant was raised by her parents. At some point prior to May of 2011, she and her family lived in Petawawa. She then moved to St. Thomas and was living in St. Thomas with her mother at the time of the alleged shopping incident, which occurred in the late spring of 2011. At the time, the complainant's mother and father were going through a separation.

[10] The shopping incident occurred in May or June of 2011, when M.N. and the complainant were visiting D.N. from St. Thomas. M.N. and D.N. had planned to go shopping. When it came time to leave, the complainant did not want to go shopping. Ultimately, all agreed that the complainant could stay at behind in the apartment with the accused. The shopping trip was relatively brief, perhaps an hour in length. The incident that is the subject of counts 1 and 3 occurred during the brief period of time in which the complainant's mom and grandmother were gone.

[11] As a result of the marital breakdown between the complainant's parents, the complainant, her mother, and her sister moved in with D.N. in July of 2011, within two months of the shopping incident and within days of the birth of the complainant's younger sister, E.. To make room for M.N. and her two daughters, the accused moved out of D.N.' apartment. He moved into an apartment within the same small apartment building, on a different floor.

[12] Both parties agree that after the shopping incident, there was a period of time in which the accused did not visit D.N.' apartment. In fact, he did not attend there during the entire period in which M.N. and the children lived with D.N.. As will be discussed further, the accused alleges that he temporarily absented himself because he was upset at being falsely accused of sexual misconduct during the babysitting incident, and that he resumed visiting his sister when she invited him over to eat, in an effort to mend fences.

[13] After about two months of living with D.N., M.N. and her children moved to their own apartment on S[…] Avenue, then moved again to a home on M[…] Drive in Kitchener. At some point, M.N. found work as a personal support worker in the region. While working, she relied upon her mother to babysit the complainant and her sister. Indeed, D.N. still babysits the children. During the period between January 1, 2012 and June 2013, the accused frequently visited his sister, D.N., at her apartment while the complainant and her sister were present. The complainant alleges that it was during these visits, while seated in the living room area, along with her grandmother and sister, that the accused frequently molested her. During this timeframe, E. would have been a toddler.

[14] The alleged course of conduct came to an end when the complainant was about 11 years old. In this regard I would note that the time frame on counts 2 and 4 do not appear to encapsulate the entire timeframe of the alleged babysitting abuse. In any event, when the complainant was about 11 years old, a confrontation occurred in D.N.' apartment. All parties agree that during this conversation, the complainant called the accused a pervert, following which the accused left the apartment. He stopped having regular contact with the complainant and her sister following this incident.

[15] While M.N. was aware of the shopping trip allegation on the date of the alleged assault, she did not tell anyone, nor did she speak directly to the accused about it. She testified that she kept quiet because she was going through a separation and was worried that the incident might affect her prospects for custody of her children. She was also worried that her husband might assault the accused in revenge and find himself in jail.

[16] When D.N. began babysitting the girls in 2012, M.N. testified that she assumed that D.N. would not permit the accused to be in the company of the girls. Upon hearing of the final confrontation between the complainant and the accused, and thereby hearing about what appeared to be another incident, M.N. told her mother not to let the accused come over while her mother was babysitting the grandkids. M.N. continued to rely upon her mother to babysit the children, though, and continued to do so right up to the date of the trial.

[17] Despite having heard about the final confrontation and new allegations, M.N. was in no rush to involve the authorities or inform her ex-husband. While the details are sketchy, it appears that the police did not become involved until the complainant's father became aware of the allegations – and he did not become aware of the allegations until July of 2016, two days before the complainant gave her statement to the police.

[18] At the time he first received the report of the abuse, the complainant's father made an audio recording of the complainant's account. The complainant was cross-examined on inconsistencies between the account in this audio recording and her trial evidence.

3. THE COMPLAINANT'S ACCOUNT OF THE 'SHOPPING INCIDENT'

[19] I will say at the outset that I was generally impressed with the complainant's demeanour. With a few exceptions, she presented as an honest and sincere witness. However, I caution myself about over-reliance upon demeanour evidence. Honest people can be poor witnesses and dishonest or unreliable people can present as good witnesses. Consequently, while it is permissible for courts to consider the demeanour of a witness, it is my view that they should place very little if any weight upon the demeanour of the witness.

[20] The complainant testified that she and the accused were having a conversation in the living room of the apartment after the departure of D.N. and M.N.. During this conversation she brought up the topic of sex. She cannot recall the details of the conversation or the reason she raised the topic. She had never spoke with the accused about sex before. She had spoken with her mother about sex previously, because she had heard about it at school and was curious. According to the complainant, when she brought up the topic of sex, the accused responded by asking "Do you want to try it?" In response, she voiced her agreement and followed the accused to his bedroom. She explained her willingness to follow the accused by pointing out that she did not know what "sex" entailed. In cross examination, however, the complainant admitted that she had previously learned from her mother that that sex involved the penis entering the vagina, and it involved touching. I therefore found her explanation for her willingness to follow the accused to be inherently flawed.

[21] According to the complainant, once they arrived in the accused's bedroom, he put her down on the bed, got on top of her, and began humping her. They were fully dressed while he was humping her, but his crotch was grinding against hers.

[22] The complainant also testified about hearing the accused say something to her about a sex act during the course of the alleged assault. According to the complainant, the accused said something about one disgusting way you can do it [sexual activity]. She testified that she did not really understand what he was talking about, but recalls him saying something about sexual intercourse in the face or mouth. This evidence was somewhat compelling. It paints a picture of a child hearing something she did not understand, but came to understand later. However, I remind myself that at the time the complainant recounted this evidence, she was 13 years old and very much aware of the nature of the particular sex act she was describing. Had there been evidence that the complainant recounted the accused's alleged description of oral sex when she was younger and unaware of the concept of oral sex, then the recounting of this conversation would have been much more compelling.

[23] The complainant further alleges that from time to time, when they heard noises, they stopped the humping. Each time the accused stopped, he got up and stood beside the bed. During at least some of these stoppages, the complainant got up and went to the nearby bathroom, before returning to the bed for further humping. She testified that she came back to the bedroom because she still wanted attention. When she was asked to explain what she meant by that testimony, she could not explain what she meant when saying she still wanted attention. She then disagreed with the notion that she actually wanted attention. She also testified that she was not fearful of the accused whilst engaging in the alleged sexual activity with him. Her hesitancy, uncertainty, and inconsistency about her state of mind caused me some concern.

[24] Eventually, the complainant heard the arrival of her mother and grandmother back at the apartment. She testified that when she heard their arrival, she realized what they were doing was wrong and she immediately got up and ran to her mother and grandmother in the living room. By this point in time, she was upset, but not crying. Upon seeing her mother and grandmother, she told them what had occurred. She said something to the effect of "I just had sex with Uncle R.P.". She further testified that, in response to this revelation, her mom and grandmother told the accused to leave the apartment. According to the complainant, the accused complied.

[25] During cross-examination, an inconsistency between the complainant's testimony and her previous account to her father was revealed. The full extent of the significance of this inconsistency can only be understood once one fully grasps the defence theory. According to the defence theory of the case, the complainant came into the accused's bedroom while he was watching television in bed. According to the defence theory, the complainant commenced jostling and wrestling with the accused, and ultimately jumped on top of him while he lay prone on the bed. At this juncture, it is alleged that the complainant began grinding against the accused, and that the accused then immediately put a stop to the behaviour. The prior inconsistency in the complainant's account pertains to the alleged sexual position of her and the accused. In her account to her father, she reported that when the two of them heard noises, the accused pushed her off of him, plainly suggesting that she was on top of the accused during the sexual encounter. Initially, the complainant denied making any such prior statement to her father. Upon hearing the audiotape for herself while on the stand, she agreed making the prior inconsistent statement, but explained it as merely miswording her account. Her response to the inconsistency and the inconsistency itself caused me significant concern, which I will explain in more detail shortly.

4. THE COMPLAINANT'S MOM'S ACCOUNT OF THE 'SHOPPING INCIDENT'

[26] When one looks at the broad brushstrokes of M.N.'s account of the shopping incident, they are similar to those painted by the complainant, and need not be repeated at length.

[27] In my view, M.N.'s account takes on significance, however, because of the ways in which it differs with the complainant's account and might be said to be consistent with the accused's account.

[28] First, M.N. agreed that her daughter made a big fuss about staying behind from the grocery shopping trip. She agreed, having had her memory refreshed by her police statement, that the complainant begged to stay behind. As will be seen, this description might be seen as consistent with the accused's account.

[29] Second, M.N. agreed that she likely asked the accused if the accused minded having the complainant stay behind at the apartment with him. She agreed that the accused did not offer on his own initiative to look after the complainant. This evidence might be seen as consistent with the accused's assertion that he did not take active steps to get an opportunity to be alone with the complainant. It is also consistent with his evidence that he did not view himself as being asked to actively babysit the complainant, but rather took no objection to the complainant's presence in the apartment during her mom's brief absence.

[30] Thirdly, and most importantly, M.N. describes her daughter as sitting upright on the couch when she returned home. This was a small apartment. The front door opened into the kitchen which in turn looked out onto the living room. In other words, the complainant was almost immediately visible to her mother when her mother returned home. M.N. did not see her daughter fleeing from the accused's bedroom, as described by the complainant. In this regard, M.N.'s account accords with that of the accused, who testified that he expelled the complainant from his bedroom after her inappropriate conduct, telling her that he would report what happened to her mother when her mother returned home.

[31] M.N. also made some other observations of her daughter sitting on the couch, upon arriving home. M.N. noted that the complainant was sitting on the end of the couch by herself; she was sitting erect, as if something was wrong; she looked stunned/surprised; and happy, but tense. The complainant then immediately reported the sexual activity. These observations seem equally consistent with the reaction, demeanour and behaviour of a child who believes her uncle is about to report her errant behaviour, as with the reaction, demeanour, and behaviour of a child who has been the victim of her uncle's errant behaviour.

[32] M.N. also reported seeing the complainant smiling as the accused walked in the door to the living room from his bedroom. The complainant denied smiling. Mr. Ritter, on behalf of the defence, agreed that this was a relatively insignificant discrepancy. I tend to agree with him and have not assigned it much if any weight.

[33] M.N. also gave an account of her mother's confrontation of the accused following the complainant's report of sexual activity. Her description of the encounter is generally in accordance with the accounts of both the accused and the complainant, with some points of possible [but not necessarily conclusive] contradiction. I note for example, that M.N. recalls her mother telling the accused something to the effect of "if you ever touch her again, you're going to jail." This account is somewhat different than her earlier report to the police, where she does not mention this communication, but provides a more generalized description of the encounter. Similarly, while M.N. suggests that the accused did not respond to the confrontation, she then conceded that the accused may have said something but she did not hear it. On the other hand, note that M.N. does not mention that she and her mom asked the accused to leave, as asserted in the complainant's evidence. M.N. also does not suggest that the accused actually departed in the face of the confrontation. Rather, she suggests he effectively ignored it. M.N.'s account in this respect seems somewhat more consistent with the accused's account. However, like the complainant, M.N. does not suggest that the complainant was immediately present with D.N. when D.N. confronted the accused. Ultimately, most of the varying aspects of the accounts of the confrontation appear to be relatively minor, with the exception of the complainant's assertion that the accused was told to leave and complied. This particular assertion suggests an acceptance by the accused of the truth of the accusation made by M.N. and D.N., and a response to the accusation that might be construed as an implicit acknowledgement of guilt. The fact that M.N. does not corroborate this assertion detracts somewhat from the credibility and reliability of the complainant.

[34] M.N. indicated that she never spoke to the accused about the alleged abuse, which I find somewhat surprising. Her fear of her husband's possible reaction to the allegation explains the failure to call the police and explains the failure to tell her soon to be ex-husband; however, it does not explain her failure to confront the accused. M.N. is a caring parent. I believe she would act to protect her child when the need arose. Her failure to confront the accused suggests that she might not have considered the accused to be blameworthy for the event.

[35] M.N. also testified that, at some point following the event, she told her mother that she did not want the accused around while her mother was babysitting the children. I am astonished that for about two or three years (when the complainant went from age 8 to age 11), she never learned of the presence of the accused at D.N.' home whilst D.N. was babysitting the children. To remain in ignorance, a number of things needed to transpire:

(1) She never arrived at her mother's home before the accused was able to depart;

(2) Her mother deliberately deceived and betrayed her for an extended period of time, for the sake of allowing her brother to visit;

(3) Her daughter kept quiet about the accused's presence, despite the fact that her daughter seems to have been very willing to talk to her mother about touchy subjects such as sex, seems to have been very willing to disclose the first event, and seems to have trusted her mother to protect her; and

(4) Between the years 2012 and 2016, her younger daughter E. [who I infer would be blissfully unaware of the need for any concern] did not ever mention in passing her regular and repeated contact with the accused.

[36] I am therefore skeptical of M.N.'s claim that she did not know that the accused repeatedly attended at her mother's home while her mother was babysitting her children. I suspect that once the allegations came to the attention of her ex-husband, she feared her husband's response to her acquiescence to the accused's presence while her mom was babysitting. It would be far easier to tell her ex-husband that she had no idea the accused had been with their children when the grandmother was babysitting, and far less likely to prejudice her custody/access rights. Of course, this is one of numerous subject areas where the evidence of D.N. could assist the court. This is also one instance where I infer that the evidence of D.N. would not assist the Crown.[1]

[37] It seems far more likely, in my view, that M.N. acquiesced to the presence of the accused during grandmother's babysitting, because M.N. did not view the first incident as being of sufficient concern to object to the accused's presence. In other words, it seems far more likely that she initially accepted what I infer to be the accused's innocent explanation of the event, and that this acceptance did not change until the complainant came forth a second time with more allegations.

5. THE ACCUSED'S ACCOUNT OF THE BEDROOM INCIDENT

[38] Having commented upon the complainant's demeanour, I will now comment upon the accused's demeanour. In my view he presented his evidence poorly, with an air of insecurity or uncertainty. If I were to base the result in this case solely upon the manner of his testimony, I suspect the result would not favour the accused.

[39] As noted, the accused's account of the outset of the shopping incident is in general agreement with M.N.'s. He testified about hearing a bit of a commotion in the living room area. He came out from his bedroom where he was watching television and learned that the complainant did not want to accompany M.N. and D.N. to go grocery shopping.

[40] He denied bringing the complainant back to his room. He testified that he returned alone to his room to watch television. On his evidence, the complainant came into his room after he had gone to the bathroom and left his door open. He indicated that she was looking for attention and came to watch TV with him in his room. He also testified that she was poking and prodding him, which led to some jostling and play fighting, all of which was occurring as he was attempting to watch his television show. I note here that, although he gave his evidence in an unconvincing manner [he had poor demeanour], what he describes seems plausible. In my experience, some seven year old children will want to have the company of an adult relative in the home. Some children will want the attention of those adults, and some will engage in playful attention seeking behaviour.

[41] The Crown asks me to make an adverse credibility finding against the accused, because he did not mention the alleged wrestling to the police during his police interview. With respect, I disagree with this submission. First, while I am aware that the accused took part in a fairly lengthy interview with the police [62 pages], I am not privy to the actual details of the police interview, because the Crown did not tender the statement as part of its case, nor did the Crown did cross-examine the accused on particulars of his statement. Without sufficient factual information, it becomes nearly impossible and very dangerous to draw inferences from omissions. For all I know, he alluded to such conduct in a more vague way, albeit not explicitly [e.g. 'she was annoying me, but I was not concerned at first.'] Second, the accused has a right to silence and is not obliged to disclose every relevant factual assertion to the police. Third, he may not have raised this particular factual allegation, because the police questions did not invite a response that included this information. For these reasons, amongst others, it is in most circumstances not permissible for the court to rely upon the accused's failure to assert a specific fact during a police interview [see R. v. Turcotte, 2005 SCC 50].

[42] On the other hand, I am highly skeptical of the accused's professed ability to remember which show he was watching, "The Deadliest Catch", at the time of the incident. I accept that an event like this might stick out in one's mind, but the event does not give rise to a motive or reason to remember a minor detail such as the television show playing at the time of the event. That said, the show in question appears to be a favourite of the accused, one that he follows weekly. He watches re-runs of this show on weekends when he misses the first airing of the episode. I accept that he honestly believes he was watching this show, despite being extremely skeptical about the reliability of that honest belief.

[43] In any event, the accused testified that the jostling and play fighting progressed to the point that the complainant climbed up on top of him and sat on his somewhat large stomach. She then slid down onto his crotch. At this point, the complainant went from wrestling with the accused to grinding against his crotch. According to the accused, he immediately terminated the encounter. He told her "don't do that", to which she responded, "It's okay." He then told her that her behaviour was not okay and that he would be telling her mother about the episode when she returned home. She then said that she wished she had a brother so she could do it [hump] to her brother.[2] The complainant then went out into the living room. At this point, I would note that the accused's account of this child's behaviour seems unlikely, but not out of the realm of plausibility. For a variety of reasons, some children demonstrate at an early age an interest in sex and their sexuality. While I have heard vague references to another adult relative's interaction with the complainant in the evidence, there has been no application under s. 276, and I do not propose to rely upon this evidence. I do know, however, that the complainant, by her own admission, expressed some curiosity about sex to her mother at a very young age, and received a rudimentary explanation of the act of sex from her mother. The behaviour described by the accused is that of a sexually curious child. In her evidence, the complainant gave evidence that she asked her mother about sex at some point prior to the alleged offence date and that she initiated a conversation about sex with the accused. In effect, she provides evidence that suggests a curiosity about sex at the time of the alleged offence. I therefore accept that she had this curiosity, despite the accused's evidence that the complainant did not initiate the encounter with questions about sex. Given the vagueness of the complainant's evidence about her initiation of a sexual discussion, and given my impression from both M.N. and the accused that the accused did not actively seek to supervise the complainant [but instead appeared indifferent], I am inclined to accept that the accused returned to his bedroom to watch television, as he describes. I am therefore inclined to accept that the complainant did not initiate a conversation about sex prior to the alleged sexual encounter.

[44] A short while later, the accused's sister and the complainant's mother arrived home. D.N. and the complainant then came to the accused's room. D.N. then asked the accused, "What happened?" The accused replied, "Nothing happened. I will tell you later." About 15 minutes later, the complainant and her mother departed. He then reported what happened to his sister.

[45] I note at this juncture that the evidence of M.N. is not capable of significantly refuting the accused's account of the post incident interaction between the accused and his sister.

[46] As noted, not long after this incident, the accused moved out of D.N.' apartment and into his own in the same building. He did so to make room for M.N. and her children. During the time in which the complainant, her mother, and her sister resided with D.N., the accused had no contact with any of them. The accused explained that he was angry about what had happened and took some time to cool off. He further indicated that, from his point of view, M.N. was not upset with him.

[47] I am somewhat suspicious about the accused's explanation for this cooling off period. He implies that M.N. and D.N. accepted his account of the first incident and had no concerns about him. In other words, he implies that the event was a brief and minor one. His alleged anger and his scarcity seem disproportionate to the incident he describes. It is also suspicious that the accused did not resume visits to his sister's apartment until the complainant and her mother no longer lived there.

6. THE COMPLAINANT'S ACCOUNT OF THE BABYSITTING INCIDENTS

[48] The complainant recalled that the accused began visiting her grandmother at some point after the original shopping incident. She described him visiting on most of the occasions in which the children were present. The children came Mondays, Wednesdays, and every other Friday. The complainant's mother had no other place to leave the kids while she worked. According to the complainant, the accused departed from these visits before her mother came to pick up the kids, implying that her mother never knew that the accused had been visiting.

[49] According to the complainant, the accused constantly groped her during his frequent visits. She testified that the accused would touch her "boob" or "crotch" over the top of her clothes. She also indicated that the accused had his tongue out when doing it, like he enjoyed it. She described the behaviours as disgusting.

[50] The complainant further indicated that she always made sure she was with E., in an effort to prevent him from victimizing E..

[51] The complainant further elaborated that, usually, the abuse happened when she was sitting on the couch in the living room. Typically, her grandmother sat several feet away from the others while at the computer during the alleged abuse. She typically sat with her back to the others, who were sitting on the couch and watching television. She further indicated that sometimes her grandmother would show the rest of them a video on the computer, during which time the accused would do it while the others stood behind the grandmother watching the video.

[52] The complainant acknowledged that it would have been easy for her grandmother to turn her head at any point in time and discover the abuse. Despite the ease of discovery and the frequency of the alleged abuse, her grandmother never saw the abuse.

[53] The complainant acknowledged having a good relationship with grandmother. She believed her grandmother would protect her. She believed her grandmother would have stopped the abuse if she had sounded the alarm. When asked by counsel why she did not report the touching to her grandmother or tell the accused to stop [in the presence of her grandmother], the complainant could not recall a reason.

[54] Similarly, the complainant acknowledged being close to her mother. She was able to talk to her mother about fears and concerns; and she held the belief that her mother would protect her. Also, after the first babysitting incident, the complainant's mother had told her to stay away from the accused. As a result, she admitted knowing that she should have told her mother if she saw the accused at her grandmothers while her grandmother was babysitting her. Despite this state of mind, the complainant suggests that her mother knew nothing about the accused's presence and certainly knew nothing about the alleged abuse for a considerable period of time. She testified that she could not recall why she did not tell her mother that the accused had been consistently present while D.N. was babysitting the complainant and her sister. This lengthy period of non-disclosure stands in stark contrast to the complainant's willingness to immediately disclose the first alleged sexual incident. The complainant was unable to offer any reason why she would not be as willing to disclose the subsequent abuse as she was the first instance of abuse.

7. THE ACCUSED'S RESPONSE TO THE BABYSITTING ALLEGATIONS

[55] Essentially, the accused provided a blanket denial of the babysitting allegations. However, there are some points and issues worth noting.

[56] First, he takes issue with the notion that D.N. was glued to her computer during his visits. I note that he described the resumption of his visits as being at the invitation of D.N.. It would seem that she invited him over to eat and/or have coffee, as a way of renewing contact. He reported coming over from time to time to eat. To some degree, this evidence is supported by the complainant, who did acknowledge that that the accused was frequently in the kitchen with her grandmother while her grandmother was doing dishes.

[57] Second, I note that the accused testified that the complainant continued to exhibit inappropriate and sexualized behaviour from time to time during his visits to his sister's home in the babysitting years. This evidence was elicited by the Crown in cross-examination, which arguably avoids triggering s. 276 of the Criminal Code [an application to introduce evidence of other/prior sexual activity]. Also, the evidence might arguably be seen to be re-characterizing the alleged conduct that is the subject matter of the charge, thereby also circumventing the requirements of s. 276 of the Code. I have adopted this approach and treated the accused's evidence about the complainant's conduct as a re-characterization of the very conduct that is the subject matter of the charge, and therefore have concluded that s. 276 is not engaged.

[58] I turn now to the accused's descriptions of the complainant's sexualized conduct during the babysitting years. On the one hand, I can envision reasonable adults tactfully attempting to discourage the behaviours, as they happened, without raising any alarms. This might be the response of someone who did not consider the behaviours as overly problematic, just an idiosyncratic behaviour of a child trying to understand his/her body. However, the accused purports to have considered the behaviour very problematic. Despite this stance, he also purports to have not raised the issue with anyone. Instead, he testified that he was waiting for an incident to occur [presumably witnessed by his sister] so he had proof of the problematic behaviours. I find this evidence suspect and not credible. I note as well that it would seem, inadvertently, to tend to support the complainant's assertion that things were occurring behind her grandmother's back without her knowledge. I think that this was an unforeseen and unintended implication of his evidence. I note as well, that I am inclined to reject the accused's assertion that he had any significant concerns about the complainant's conduct but did not act on those concerns. The rejection of his purported concern, however, is not synonymous with a rejection of the assertion that the complainant exhibited some sexualized behaviours, nor is it synonymous with a finding that the accused was molesting the complainant. The rejection nevertheless impacts upon my assessment of the accused's credibility and/or reliability.

[59] I now turn to one specific piece of evidence about the complainant's alleged sexualized behaviours. In cross examination, when asked to elaborate about the complainant's problematic behaviours, the accused testified that the complainant made comments about her breast development. The Crown submits that I should make an adverse finding against the accused, because the accused failed to inform the police of this information. As noted above, the Crown made the same submission in regard to the alleged wrestling behaviour in the first incident. For virtually the same reasons given above, I reject the Crown's submission.

[60] Another interesting facet of the accused's evidence was his assertion in cross-examination that he was present in his sister's apartment when M.N. dropped in. While neither the defence nor the Crown dwelled on this topic, he would seem to assert that M.N. knew well that he was frequenting the apartment. Given this evidence, and my earlier skepticism regarding M.N.'s professed ignorance of the accused's presence, I am prepared to find as a fact that M.N. did in fact know about the accused's continued presence at D.N.' apartment. I conclude that M.N. claimed ignorance after the allegations came to the knowledge of her ex-husband, in an effort to deflect her share of responsibility for exposing her daughter to the risk of abuse.

8. THE COMPLAINANT'S AND HER MOTHER'S ACCOUNT OF THE TERMINATION OF THE CONDUCT

[61] The complainant testified that when she was 11, on a day in which she was molested at her grandmother's apartment, she had reached a point in her life where she had concluded that what the accused was doing was wrong. Accordingly, she confronted the accused, called him a pervert, and kicked him out of the apartment.

[62] Her evidence on this point is somewhat incongruous with other aspects of her evidence. For example, I note that she purports, at the time of the first incident, to have realized that the accused's conduct was wrong the moment her mother arrived back at the apartment. I also note that the complainant testified that she repeatedly positioned herself beside her sister [while at her grandmother's home] in an effort to protect her sister from similar abuse. This testimony implicitly asserts an ongoing knowledge and belief that the alleged conduct was wrong.

[63] I also note that the complainant purports that the confrontation occurred in the presence of her grandmother. Again, the grandmother did not testify. Her evidence is therefore not available to assist in resolving any conflicts between the testimony of the complainant and the accused about this confrontation.

[64] In any event, following this confrontation, the complainant then reported her allegations to her mother, telling her that the accused had been molesting her for a couple of years. M.N. confirms that she received a report at the time of the confrontation. It would appear that after the confrontation, the accused ceased visiting his sister while his sister was babysitting the grandchildren.

[65] Interestingly, about a year passed before the police received a report. The police received a complaint about 2 days after the complainant disclosed her allegations to her father. While I have no admissible evidence about the way in which this final narrative of the complaint unfolded, I heard from the complainant that it was her belief that her sister reported the abuse to her father who in turn spoke to the complainant about the alleged abuse. The passage of a year between M.N.'s knowledge of the complaint and the report of the complaint to her ex-husband suggests that M.N. may have been more concerned about preserving her custody interests than about the pursuit of any prosecution of the accused. As noted, I have consequently concluded that M.N. most likely knew that the accused had been repeatedly dropping in to see D.N. when the complainant and her younger sister were present.

[66] Before turning to the accused's account of the confrontation, I will simply note that the complainant disagreed with the finer details of the narrative of this confrontation, but I do not attach any great significance to this area of conflict in the evidence.

9. THE ACCUSED'S ACCOUNT OF THE FINAL CONFRONTATION

[67] The accused agreed that the complainant confronted him. However, he maintained that he departed on his own accord in response to being called a pervert. He rejected the notion that the complainant kicked him out.

[68] The accused further testified that the incident arose out of a discussion the accused was having with D.N. in the kitchen. She had been speaking about a nephew who had committed some kind of transgression. The nephew was described as a pervert. The complainant the said something to the effect of "I know a pervert. I'm looking at one". When he heard this, he got mad. He left and went to his own apartment. He denied being forced out by the complainant.

[69] Interestingly, neither defence counsel nor the Crown asked the accused to speak about whether or not there was any post confrontation contact during subsequent babysitting visits, and if not, the accused's explanation for becoming scarce.

10. ANALYSIS

[70] To begin with, I will observe that the Crown appears to implicitly concede that the accused's account of his interactions with the complainant does not disclose a criminal offence. Although he acknowledges a single incident of sexual contact [a brief grinding of her pelvis upon his], he purports that this contact was at the instance of the complainant without his consent. In other words, he purports that he did not commit the unlawful act [the application of force that violated the sexual integrity of the complainant] and had no intent to commit an unlawful act. No one suggests that the alleged play fighting between the accused and the complainant is criminal conduct. Absent the alleged humping, consensual play fighting of the kind described can hardly be considered conduct that could objectively or subjectively violate the sexual integrity of the complainant. With regard to the babysitting incidents, the accused asserts that no virtually physical contact occurred at all. Accordingly, I conclude the defence evidence provides a complete answer to the charge, if it is accepted or at least not rejected beyond a reasonable doubt.

[71] Similarly, no one suggests that the behaviour described by the complainant can be considered anything other than an intentional and repeated violation of the complainant's sexual integrity through an application of force by the accused. In short, her allegations are a description of incidents of sexual assaults and sexual interference.

[72] Having regard to the evidence and the positions of the parties, it is therefore unnecessary to embark on a detailed analysis of the definition of a sexual assault.

[73] Needless to say, the burden of proof in a criminal case rests upon the Crown. In order to achieve a criminal conviction, the prosecution must prove beyond a reasonable doubt that the accused committed the essential elements of the offence. This standard of proof does not apply to each individual fact in issue. Rather, the criminal standard of proof applies at the stage of the determination of the verdict. A trial judge cannot convict the accused unless, having considered all of the evidence and, on the basis of the facts the judge does accept, is convinced beyond a reasonable doubt of the guilt of the accused. Put another way, I must ask myself whether, on the whole of the evidence and on the basis of the facts I do accept, I am left with a reasonable doubt about the guilt of the accused. In summarizing the burden of proof, I remind myself that a trial judge may accept some, all, or none of the evidence of any particular witness during the necessary consideration of the evidence as a whole.

[74] The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence. The presumption of innocence is considered a cornerstone of any democracy. It protects each individual in a democracy from unwarranted persecution by the state. The presumption of innocence is an essential barricade that prevents tyranny from overwhelming liberty. One need only look at current world events and the wars of the 20th century to remember that democracies are fragile and need to be protected by remaining loyal to liberal democratic principles and institutions.

[75] The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt nor is it an imaginary or frivolous doubt. On the other hand, more is required than proof that the accused is probably guilty. It falls much closer to absolute certainty than to proof on a balance of probabilities. Accordingly, a jury which concludes only that the accused is probably guilty must acquit.

[76] It follows from the presumption of innocence and the burden of proof that a trial judge cannot, when faced with competing versions of evens, simply choose between them. To do so ignores the fact that disbelief of an accused does not automatically make the evidence called by the Crown credible, reliable, and worthy of acceptance beyond a reasonable doubt. Treating a criminal trial as a contest between two competing versions places upon the accused the burden of proving his version in order to win. It shifts the burden of proof on the accused, thereby removing one of the barricades that protects liberty from tyranny.

[77] When applying the criminal burden of proof in a case where the accused has testified and provided exculpatory evidence [and thus where credibility and reliability are central issues], trial judges are encouraged to take the following approach to the evidence:

(1) First, if the trial judge accepts the evidence proffered on behalf of accused [having regard to the whole of the evidence], the judge must acquit the accused.

(2) Second, even if the trial judge does not accept the entirety of the evidence proffered on behalf of the accused, the trial judge must ask whether that evidence, or the portions of it that the judge accepts, leaves the judge with a reasonable doubt. If left with a reasonable doubt by the evidence of the accused, the court must acquit.

(3) Third, even if the judge entirely rejects the evidence proffered on behalf of the accused and is not left with doubt by it, the trial judge must still examine the whole of the evidence and ask whether, on the basis of the facts accepted by the court, the crown has proven the case beyond a reasonable doubt.

[78] I have been reminded by both counsel that the complainant in this matter is a child. She was 13 when testifying and was 7 when the first alleged offence occurred. Over the last thirty years, the judicial approach to the evidence of children has evolved. Judges are encouraged to take a common sense approach to the evidence of children and recognize that children may not have the same ability as adults to recall past events with precision. While children may not be able to provide exact details of the circumstances of an event, this does not necessarily mean that they have misconceived what happened to them and who did it. Ordinarily, there should be a somewhat greater tolerance for inconsistencies and mistakes when assessing the evidence of young children, particularly with respect to peripheral matters like time and location, while nevertheless not relaxing the standard of proof [see for example: R. v. B.(G.), [1990] 2 S.C.R. 30 and R. v. W.(R.), [1992] 2 S.C.R. 122].

[79] I turn now to an assessment of the evidence before me. As can be seen by my summary of the evidence, above, there are aspects of the evidence of each witness that I found troubling. There are also aspects of the evidence of each witness that I found compelling. My responses to certain pieces of evidence of one witness at times had an impact upon my response to the evidence of another. Indeed, certain aspects of the evidence of the complainant only began to take on greater significance once I heard the evidence of the other witnesses. Consequently, I see no magic in the order in which I analyze the evidence. As a result, I will intermingle my references to the evidence as I analyze each allegation.

[80] As noted, I was impressed with the complainant's demeanour. She presented her evidence in a believable fashion. I tend to believe her when she asserts that the accused made sexually inappropriate contact with her. However, I caution myself to be wary of demeanour evidence and to avoid placing undue reliance upon it. In addition, as can be seen above, there are aspects of the complainant's evidence that trouble me.

[81] I will deal with the shopping incident first. I note here that the complainant was insistent at trial that the accused got on top of her and humped her while she lay on the bed in his bedroom. However, in her out of court statement to her father, two days before her police interview, she clearly asserted that the accused pushed her off of him, plainly suggesting that she was on top of the accused during the sexual encounter. This prior account is consistent with the accused's account of their physical positions. Accordingly, it tends to be corroborative of the accused's evidence. The complainant's initial denial that she had made this prior inconsistent claim troubles me as well. I accept that she believed she had not made a prior inconsistent statement. As I have said, she gave her evidence in a believable manner. It is that self-conviction that troubles me. Despite her confident belief in that particular fact, it is clear that she previously held a conflicting belief about the same fact around the time of the police complaint. I have grave concerns about the reliability of her account on what is a central detail of this particular alleged sexual assault. The contrasting body positions of the complainant and the accused have the potential to drastically alter the nature of their interaction, and also her perception of the nature of that interaction. While I have attempted to be tolerant of minor inconsistencies and inaccuracies in the evidence of the complainant, I consider this inconsistency in her account to be too significant to ignore. As noted, the case law makes it clear that while we must apply a tolerant and contextual approach to the evidence of children, we must also be wary relieving their evidence of all scrutiny or subjecting their evidence to insufficient scrutiny. There will be occasions where the evidence of child is so intrinsically flawed, or at odds with other evidence, or vague, or substantially inconsistent with his/her prior statements, that the court must caution itself about the credibility or reliability of that child [see for example: R. v. M.B., 2011 ONCA 76].

[82] I have one other comment to make regarding the complainant's prior inconsistent description of the alleged humping. I found her explanation for the inconsistency to be troubling. Having been shown that she did in fact make the prior inconsistent claim that she was the one who was on top of the accused; and having accepted that she made this prior inconsistent assertion; she then explained that she simply misspoke. That explanation is simply illogical and implausible. Having observed her, I was not convinced she believed this explanation. She lacked her usual appearance of conviction. I conclude this was the only explanation she could think of; and for lack of anything better, she offered it up in the hopes the questioner would move on.

[83] There is another conflict in the evidence that is related to the complainant's conflicting accounts of her body positioning during the shopping event. Recall that the complainant testified that she left the room upon hearing the return of her mother. She reported leaving the accused's room and immediately reporting the incident to her mother and grandmother. However, her mother did not report seeing her coming from the direction of the accused's bedroom. She reported seeing her daughter sitting on the couch upon entering the front door. I infer that the complainant would have been essentially immediately visible to her mother as her mother entered, given the layout of this small apartment. The mother's evidence therefore suggests that the complainant was not fleeing the accused's bedroom as her mother entered. The mother's evidence is more consistent with the accused's evidence that the complainant had left the accused's bedroom of her own accord long before M.N.'s return home. This evidence again tends to support the accused's version of the events.

[84] With regard to the shopping incident, there are some inconsistencies in the complainant's evidence I place virtually no weight upon. For example, the apparent conflict between her and her mother about whether she was smiling when her mother came home. I have trouble seeing how an adult could give a reliable account of an individual's demeanour during an event that occurred six years ago. I have even more trouble seeing how a 13 year old would remember whether or not she smiled during an event that occurred when she was 7.

[85] As noted, there are aspects of the accused's evidence regarding the shopping incident that troubled me as well. In general, he seemed to profess to remember too much, including what television show he was watching when the event occurred. I also found his demeanour to inspire distrust in his account of the event.

[86] That said, I note that the accused's account of the confrontation with his sister was generally consistent with M.N.'s. According to the complainant, D.N. confronted the accused after she said she had [fully clothed] sex with Uncle R.P.. Her own account of her declaration could be interpreted as her describing her actions, rather than her describing his. She did not purport to have declared that she was humped by Uncle R.P., for example. Also, M.N. confirms that the situation quickly diffused. M.N. also could not really dispute the accused's evidence as to how he responded to D.N.' initial confrontation. Perhaps most importantly, M.N. disputed the complainant's assertion that the accused departed in response to the accusation. According to M.N., she and her daughter soon departed, not the accused. This is another discrepancy that cannot simply be written off as the by-product of the frailties of a child historian. The question of whether or not the accused bolted in response to sex abuse allegations fundamentally alters the nature and quality of the alleged confrontation.

[87] I also considered whether the complainant's declaration to her mother and grandmother might be considered fall within the res gestae exception to the hearsay rule. I have declined to do so, in part because I was not asked to use the declaration for this purpose. Also, as noted, the declaration is ambiguous and equally consistent with the accused's version of events. I also note that M.N. provided an even more generalized and ambiguous account of the complainant's declaration, nothing even remotely close to a verbatim quote.

[88] I am also troubled by the accused's prolonged absence from his sister's apartment once M.N. and the kids moved in shortly after the shopping incident. It is certainly capable of leading to the inference that the accused knew he had crossed a line. However, it is also consistent with the accused's evidence that he found the event upsetting. I can certainly imagine a person in the accused's position wanting to avoid further trouble with a sexually precocious child.

[89] The Crown would seem to argue that, by virtue of the complainant's age, the accused's account is simply not credible. While I would certainly agree the behaviour described is not the norm, it is not inconceivable that some children can exhibit behaviours that are more sexualized than others their equivalent age. While the accused's account might seem unlikely, I cannot discount it as wholly implausible, particularly given the complainant's own evidence regarding her curiosity about sex on the day in question and on an earlier date. In my respectful view, while the accused's account seems unlikely, I cannot discount it as wholly implausible.

[90] It is also entirely plausible, in my view, that a bored seven year old might seek out the attention of the only other person in the apartment while her mom was out shopping. The progression from quiet attention seeking to minor play fighting would certainly not be a surprising development between a child and an adult relative in the home. In this regard, I keep in mind that, on all the evidence, the accused had made no attempts to engineer a situation in which he could be alone with this child. Quite the contrary, it was the seven year old who unexpectedly and at the last minute balked at going shopping with her mom and grandmother. She preferred instead to stay home with her great uncle. With this historical context in mind, I would have been surprised if the complainant ignored her uncle and chose to keep to herself.

[91] With regard to the babysitting allegations, I am highly skeptical of the assertion that the accused could for 2 or 3 years behave so consistently, flagrantly, and recklessly towards the complainant while in the same room as the complainant's grandmother without being detected.

[92] Also, given the complainant's willingness to immediately disclose the shopping incident, I doubt that she would have failed to say or do anything in response to the continued alleged abuse for such a long period of time. The complainant certainly offered no evidence to explain her change in willingness to report the sexual abuse. She simply could not remember.

[93] Of course, ordinarily, the delayed disclosure of a complaint should not, standing alone, give rise to an inference that the complaint is not true. As indicated by Justice Major in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275:

[65] … there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. … In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

In the case before me, however, the delay in disclosure does not stand alone. It stands juxtaposed to an earlier immediate willingness to report sexual abuse by the same alleged perpetrator to the same trusted adults. These are adults that the complainant testified she trusted to protect her and adults she felt she could talk to. The complainant could not offer any explanation for her change in willingness to disclose the abuse. Implicitly, she seemed to assert that the final confrontation at age 11 came about as a result of her finally realizing the conduct was wrong, but this implicit explanation rings hollow, given her evidence that she realized the shopping incident was wrong as it was occurring and her evidence that she continuously took steps to protect her younger sister over the next few years. The complainant's explicit explanation for the change in willingness to disclose was simply a lack of recollection. I have trouble accepting that a child who professes to be profoundly troubled by abuse would not recall why she stayed quiet.

[94] I have also indicated my concern about M.N.'s professed ignorance of the accused's consistent attendance at his sister's home while his sister babysat the complainant. I don't propose to repeat myself on this issue. Suffice to say, I am inclined to infer that M.N. knew all along that the accused continued to hang around with D.N. while D.N. babysat the complainant and E.. I find it extremely improbable that both the grandmother and the children would have kept contact with the accused a secret between 2012 and 2015. I note that in 2015, E. would have been turning 4. It is extremely improbable that, between the ages of 2 and 4, that E. would not once have reported seeing her Great Uncle. As indicated above, I have concluded that M.N. knew of the continued contact and had no issue with it. I infer that she took issue with the contact after the fact, and professed ignorance of it, in an effort to prevent any negative impact upon her custodial rights. This inference is supported in particular by M.N.'s evidence that she was concerned in 2011 that the first alleged incident might affect her custodial rights, so she never reported it to her husband.

[95] As noted, despite my concerns about the plausibility of prolonged and consistent abuse occurring in the grandmother's presence, and without detection, I also have concern about the accused's evidence. His professed ongoing concern about the complainant's behaviour coupled with his explanation for his failure to voice his concern lacked any credibility. However, I am not in a position to conclude whether the accused's failure to sound the alarm was attributable to the fact that the complainant was not exhibiting some sexualized behaviours, or to the fact that she was exhibiting these behaviours but the accused was not overly concerned because the behaviours did not result in any further physical contact with him. I am only in the position to conclude that the accused, like M.N., appears to have engaged in some revisionist history in an effort to protect his interests. This conclusion, of course, causes me grave concerns about the accused's overall credibility. In addition, I would note that I do have concern about the motives of a man who professes to be uncomfortable with the sexual behaviours of a child and yet nevertheless continues to put himself in the presence of that child.

[96] Having considered the accused's evidence, coupled with his demeanour in giving that evidence, I am inclined to not entirely believe him. There is nothing intrinsically flawed about his account of the shopping incident, but his disappearance for a considerable period of time seems to be consistent with a consciousness of guilt. Similarly, his persistent desire to be in the company of a sexually precocious child is highly suspicious.

[97] Having said that, I cannot entirely discount the accused's evidence, when viewed in light of the entirety of the evidence. His description of the shopping incident is supported, in part, by the evidence of M.N. (to a degree). It is also consistent with the prior inconsistent statement of the complainant. Also, I believe that his ongoing contact with the children during the babysitting years was probably with the knowledge and consent of both M.N. and D.N.. I believe it entirely improbable that D.N. would not have detected any impropriety, contrary to the assertion of the complainant. Given that all witnesses purport that D.N. acted in an appropriately protective manner in the first incident, I doubt very much that D.N. would not have acted to protect the complainant had she seen any cause for concern. Also, given the complainant's earlier willingness to be open and frank about the shopping incident, I think it reasonably likely that the complainant would have raised the alarm at the outset of the babysitting years had there been any inappropriate contact.

[98] In conclusion, while I am inclined to conclude that the accused probably engaged in some sexually inappropriate behaviour, I cannot, having considered all of the evidence, reject the accused's evidence beyond a reasonable doubt. In addition, the various frailties in the evidence of the Crown, when considered with the whole of the evidence, cause me to conclude that the Crown has not been able to prove the offences beyond a reasonable doubt. While I remain of the view that the accused probably committed one or more sexual offences in relation to the complainant, "probably" is simply an insufficient conclusion upon which to base a conviction in a criminal trial.

[99] I will therefore acquit the accused on all counts before the court.

11. PEACE BOND

[100] That does not end the matter, though. The Supreme Court of Canada Decision of R. v. Parks, [1992] 2 S.C.R. 871 provides trial judges with the authority to impose a peace bond in cases even after they have entered an acquittal. A court may invoke its common law jurisdiction to prevent further breaches of the peace if it is satisfied that there exist reasonable and probable grounds to believe a likelihood of further breaches of the peace, and that a peace bond will assist in preventing such further breaches [see R. v. Musoni, (2009), 243 C.C.C. (3d) 17 (Ont. S.C.J.); affirmed 2009 ONCA 829, 248 C.C.C. (3d) 487 (Ont. C.A.)].

[101] The accused is entitled to procedural fairness before the court orders the imposition of a peace bond. In this case, he has taken the opportunity to testify and provide his answer to the allegations. In addition, his counsel was invited to make submissions on the propriety of the imposition of a peace bond in the event of an acquittal that flowed from the conclusion that he was merely probably guilty. In my view, the accused has therefore been afforded procedural fairness. He has had notice, the opportunity to give evidence, and the opportunity to make submissions.

[102] For the reasons outlined above, I have concluded that the accused is probably guilty of some sexually inappropriate contact with the complainant and that there therefore exists grounds to believe he may in the future behave in a similar fashion towards another child. Also, given the emotionally charged nature of the allegations before the court, I also have reasonable grounds to believe that contact with the complainant and her family will result in a breach of the peace. I will therefore order that he be bound by a common law peace bond. He is ordered to do the following:

(1) Keep the peace and be of good behaviour;

(2) Have no direct or indirect contact with A.N., or any member of her immediate family;

(3) Do not directly contact or be in the immediate presence of anyone under the age of 12 unless in the direct company of that child's parent, legal guardian, or other adult approved of by the child's parent or legal guardian.

This order will be in force for three years, commencing today, October 16, 2017.

Released: October 16, 2017

C.A. Parry

[1] I pause to say here that I am mindful that a court should exercise great care and restraint in drawing adverse inferences against a party for not calling a witness on a material fact. I am also mindful that such inferences may be more easily drawn against the party who bears the logical burden of proof in the matter [consider for example, an accused who does not produce his alibi witnesses at trial]. In this situation, M.N. suggests she knew nothing about the accused's presence; that her mother kept her in the dark. Given the time frame involved, the frequency of the visits, the unlikelihood that both of her children would refrain from even a casual mention of seeing the accused, M.N.'s admitted motivation to protect her custody interests [by depriving her husband of information], and the accused's evidence suggesting his visits were out in the open, I am prepared to infer that D.N. evidence would be unhelpful to the Crown on this point [see R. v. N.L.P., 2013 ONCA 773, [2013] O.J. No. 5878 (C.A.)]. While it would ordinarily be advisable to seek a response from the Crown on this issue before drawing the adverse inference, I am prepared to draw the inference in this situation because of the considerable body of evidence supporting this adverse inference.

[2] All of these claims were specifically put to the complainant and denied by her.