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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: April 30, 2018

Court File No.: Sudbury 16-3240

Between:

Her Majesty the Queen

— and —

M.T.

Before: Justice A. L. Guay

Heard on: December 7 and 19, 2017

Reasons for Judgment released: April 30, 2018

Counsel:

• Kara Vakiparta — counsel for the Crown
• P. Berk Keaney — for the defendant M.T.

Guay J.:

[1] Charge

M.T. was charged with inviting his granddaughter, I. T., a child of six years of age, to touch him sexually. The incident is alleged to have occurred in the period between July 31, 2016 and August 5, 2016, at the accused's home in the City of Greater Sudbury.

[2] Trial

The trial of this matter took place on December 7 and December 19, 2017. The accused denied the charge against him; he did not testify on his own behalf. The Crown called two witnesses: the complainant and her mother, K. O.

OVERVIEW

[3] Background

At the time of the events before the court the complainant child I. (T.)'s parents had been separated for a number of years. The alleged offence took place in the context of I. (T.)'s summer holiday visit with her father and his parents during the summer of 2016 when she was six years old. I. (T.) spent about a third of that holiday at her grandparent's home, while the rest she spent with her father, his relatives on Manitoulin Island and her mother. Following her visit with her father's family, I. (T.)'s father brought her to her mother at W[…], a small village located on the Tobermory Peninsula across from Manitoulin Island. After spending a week there with her mother, I. (T.) returned to Ottawa with her mother. It was about three weeks after her return that she made a disclosure to her mother triggering the present charge before the court.

K. O.'S EVIDENCE

[4] Disclosure and Response

The circumstances of I. (T.)'s disclosure to her mother, K. O., and the response of her mother to I. (T.)'s disclosure are important. So too are the immediate steps taken by her mother in response to this disclosure. Counsel agreed that what I. (T.) told her mother would not be put into evidence for the purpose of establishing the truth of such statements.

[5] Mother's Initial Response

In her testimony, K. O. indicated that she had not responded with alarm or hysteria to statements made by her daughter about what her grandfather had done to her. In cross-examination, she agreed that she gave the police a statement a day or two after I. (T.) made her disclosure. She confirmed that in that statement she told the police that because there was no male person residing in their home, I. (T.) had a curiosity about the male penis. She also confirmed her belief that I. (T.) had most likely snuck a peek at her father's penis in the past because of her curiosity.

[6] Seeking Advice

According to K. O., her first response to I. (T.)'s disclosure was to think that I. (T.) had only snuck a peek at her grandfather penis. She testified that after giving what I. (T.) told her further thought, she decided to call the local Children's Aid Society to seek advice about what to do. Given that I. (T.)'s disclosure occurred during a weekend, she was not immediately able to discuss the matter at length with a protection worker. This would occur the following Monday when she met child protection workers at local police headquarters.

[7] No Prior Questioning

When asked whether she had spoken to I. (T.) about her disclosure before taking her to police headquarters, K. O. indicated that she had not done so. I accept her evidence on this point. When asked whether she had asked I. (T.) whether she had been told by her grandfather that what had occurred would be "our little secret", she testified that she had not asked I. (T.) such a question.

[8] Relationship with Accused's Family

Defence counsel asked I. (T.)'s mother a number of questions relating to her separation from I. (T.)'s father, J. T. He is the accused's son. These questions focused on the possible existence of antagonism by I. (T.)'s mother towards J. T. and his parents. K. O.'s evidence on this matter established that she had little if any motive for hating the T.'s and consequently wishing to turn I. (T.) against either her grandparents or her father. After matrimonial proceedings lasting a few years, something unfortunately not uncommon in the field of family law, K. O. noted that she had been granted custody of I. (T.), while I. (T.)'s father was awarded bi-weekly and summer access to her. The available evidence indicated that notwithstanding what animosity had existed between I. (T.)'s parents as a result of their break up and the consequent family law proceedings, they had moved on and were no longer in conflict. By the summer of 2016, they were clearly able to arrange I. (T.)'s summer holidays without any sign of conflict.

[9] Limited Contact with Accused's Parents

In her evidence, I. (T.)'s mother confirmed that she told the police that she had not seen J. T.'s parents for a few years prior to the incident with I. (T.). I do not find this unusual, particularly after her separation from their son had severed any links between them. This said, I accept that an emotional link can continue to exist between a spouse and his or her former parents-in-law after separation, but this is the exception rather than the rule. If there was residual antagonism between K. O. and her ex-spouse's parents, no evidence was presented to prove it.

I. T.'S EVIDENCE

[10] Child Complainant's Demeanor and Memory

I. (T.) was born on […], 2010. At the time of the alleged incident, she was six years of age. When she testified in December 2017 she was seven years of age. While on the basis of her evidence I would not say that she had the best memory in the world, I found that she remembered quite a lot about the events constituting the basis of the charge against her grandfather. From her testimony, it was apparent that I. (T.) did not have any animosity towards her father. Neither did she have any negative feelings towards her father's parents, whom she called "Grand Maman" and "Grand Papa". She appeared to have thoroughly enjoyed her summer visit with them and her father in 2016 and, whether during her visit or later after she returned home to Ottawa, she exhibited no alarm at anything that happened while residing with them in their home during a part of that holiday visit. It should be recalled that the alleged sexual impropriety which I. (T.) disclosed had not involved conduct which was to her, painful or disturbing, particularly if we take into consideration what her mother revealed about I. (T.) liking to "sneak a peek" at her father's penis while he showered at the time he was residing with them.

THE DISCLOSURE

[11] Spontaneous Disclosure

The circumstances in which I. (T.) made her disclosure to her mother could be best described as "off-hand". Towards the end of August 2016, about three weeks after she had returned to her mother's home in Ottawa, and while her mother was cleaning the toilet and she was playing, I. (T.) made a spontaneous disclosure that she had touched her grandfather's "wiener". By this she meant his penis. When asked by the Crown where that body part was located on the male body, she answered, in childish language: "In the front…of his bum".

[12] Location of Incident

Asked where this touching had occurred, I. (T.) testified that it had occurred in her grandparents' bedroom, with both herself and grandfather on the bed in that room. Asked where on the bed her grandfather was when this occurred, she said that he was lying down on the bed on his back. This reply was contrary to the suggestion made to her by defence counsel that on that occasion, he might have been sitting up on the bed or lying down on his stomach. For a suggestible child to have so replied constitutes an indicia of credibility to her testimony.

[13] Position During Incident

I. (T.) further testified that when the incident with her grandfather occurred, she was positioned in front of him. When asked whether she was beside him or on top of him, she replied: "I was like – I was like between his leg (sic), or I think I was on him". What can be deduced from this evidence is that when the alleged events occurred, I. (T.) had placed herself in front of her grandfather while he and she were on the bed together. The position described by I. (T.) would have made it possible for the alleged events to have occurred.

[14] Other Persons Present

In answer to the Crown's question about who else was present during these events and where her grandmother and father were when this occurred, she answered that she thought they were in the kitchen. I deduce from this evidence that neither of them was within her or her grandfather's view.

[15] Nature of Touching

When asked by the Crown how she had touched her grandfather's "wiener", I. (T.) answered: "Like, I just touched it with my hand". When asked if her grandfather was awake when this happened, she answered that he was awake and that she knew this because she saw that his eyes were open. Coming from a seven year old child, I find this evidence that her grandfather was awake when the offence occurred provides an indicia of credibility to her testimony.

[16] Duration of Touching

When asked how long she had touched her grandfather's penis, I. (T.) recalled that it was "...maybe a minute, or – or 30 seconds. I don't know how long". Here, her initial recollection of time is not unreasonable. I find this evidence credible.

[17] Details of Touching

Asked whether she did anything to her grandfather's penis when she touched it, she replied: "No". When further asked how many hands she used to touch it, she answered: "Two". She did not recall her grandfather saying anything to her on that occasion. I find that while at first glance her answer to what she allegedly did with her grandfather's penis seems to be inconsistent with the answer to the question about how many hands she used to touch it, it is not. This is a sexual "touching" sexual case, not a masturbation case. I. (T.)'s answer leaves open the possibility that she did indeed rub her grandfather's penis, but she did not say this. She did not push her recollection of the events in this respect further than that.

I. T.'S CROSS-EXAMINATION

[18] Attention to Detail

Defence counsel started his cross-examination of I. (T.) with questions about her personal circumstances, asking her about her life and family relationships. He asked her about her holiday with her grandparents and whether she had visited the zoo during that time. I. (T.) corrected counsel when he asked about her trip to the zoo and told him that it was not a "zoo" she had visited but rather that it was "like a different place; it was called Omega Park." This answer, while not about the matter before the court, showed that I. (T.) was capable of paying careful attention to what she was being asked and to her answers to those questions. In my view, it added to the credibility of her evidence.

[19] Positive Relationship with Grandfather

I. (T.) recalled that during her visit she did different things with her grandfather, including catching toads and playing in the park. She recalled that she always had lots of fun with him. If it is alleged that she had a reason to falsely accuse her grandfather of doing something inappropriate to her, her evidence regarding how much she enjoyed her holiday with him lays that allegation to rest.

[20] Grandparents' Treatment of Child

I. (T.) further agreed that her grandparents were always very, very nice to her when she came to visit them. I. (T.)'s testimony and her recollections of her holiday with her grandparents did not suggest that she was a child who had been prejudiced against them by her mother.

[21] Memory and Passage of Time

When asked about the date of her last visit with her grandparents, the time of year it occurred and how she got to her grandparent's house from Ottawa, she testified that she thought she had flown there but said that she was not sure. She agreed that maybe she drove with her father, but said: "I don't really remember." She agreed that she could not remember because it was, in her mind at least, a long time ago. She agreed that when things happen a long time ago, one forgets things. I found her response to this question and the suggestion made to her insightful for a child of seven, the age at which she was testifying.

[22] Recollections of Holiday Activities

In answer to further questions put to her in cross-examination, I. (T.) recalled playing with her cousin E. while visiting her grandparents in Sudbury in the summer of 2016. She also recalled her aunt N., E.'s mother, visiting her grandparent's home while she herself was visiting there. She recalled too that her grandparents read her stories, but she did not recall going swimming during her time in Sudbury. Since this evidence from I. (T.) was uncontradicted, I find that her recollection on these matters adds to the credibility of her evidence.

[23] Further Holiday Details

I. (T.) further recalled that she played on swings during her holiday with her grandparents and that her father was present when she came to Sudbury on her last visit, the visit during which the alleged sexual touching took place. She agreed that she wrestled with her father, but not with her grandfather, but she was not sure of that either. When prompted, she agreed that after catching and playing with frogs, she named one of them "Freddy Frank". I. (T.) could not recall how long she stayed in Sudbury on the occasion of her last visit there. She offered the opinion that her visit might have lasted "…like four or something…days". Again, these recollections were for the most part uncontradicted and add to the credibility of her evidence.

[24] Return Journey and Cottage Visit

When asked how she had returned to Ottawa at the end of her summer holidays, I. (T.) wrongly recalled that she had come back to Ottawa by plane. This was not how her return from her holiday occurred. She "kind of" remembered that she had spent time at a cottage. This last answer was consistent with what did happen with her mother during the summer, but this part of her summer holiday did not seem to be marked with any memorable events for I. (T.). The way I. (T.) put it was childish. She said: "Like I kind of remember going there, but I don't like really remember". My assessment of this answer is that while her memory of her stay at a cottage on the Tobermory Peninsula in Georgian Bay, Ontario is not strong, it is consistent with what she did with her mother at the end of her holiday with her father and his family. Frankly, it is not surprising that after a summer of travelling around Northern Ontario more than one year before she testified at the trial of this matter, her memory of the specific dates and places of her travels is not strong. I interpret what she remembers about certain events in her life to mean that she will often have a memory of events even if not a strong one but that she will remember certain agreeable things that happened or impacted her.

[25] Layout of Grandparents' Home

Following the topic of her travels during the summer of 2016, counsel proceeded at this point of his cross-examination to question I. (T.) about the layout of the T. home. I am not sure that at 7 years of age, I. (T.) should be expected have the ability to understand the professionally prepared sketch of her grandparents' home presented to her. She remembered that during her visit with her grandparents, she slept in their bedroom with her grandmother while her father slept in the bedroom next to her grandparents' bedroom. This recollection was not challenged and, again, adds to the credibility of her evidence. I. (T.) agreed that her grandfather had given up the bed in the bedroom he shared with her grandmother so that she could sleep there with her grandmother.

[26] Police Statement and Disclosure Timing

When defence counsel embarked on the final stage of his cross-examination having to do with what she told the investigating police officer, her memory worsened. She seemed somewhat puzzled about when she gave her statement and how she had come to be at the police station to give that statement. She agreed, however, that she had tried her best to speak the truth. Importantly, when questioned about her disclosure and asked when she made it, she replied: "It was after I got home". When challenged about her answer, she clearly made a stab at remembering by saying that she thought it was on the date she got home. When challenged that her mother had given a later time estimate, she was unable to say whether or not her mom was wrong. When challenged that she really didn't remember when she told her mother about touching her grandfather's penis, she then agreed that she didn't remember the day.

[27] Clarification Under Cross-Examination

Counsel was then able to obtain from her a statement that she had not told her mother anything, saying: "I don't think anything". An important point occurred in the cross-examination when, in answer to his suggestion that she had told the investigating police officer that what she told her mother was that she "saw her grandpa's penis but nothing more", she replied: "No. I said that he let me touch it." This constitutes probative evidence obtained under cross-examination about her allegation that she touched her grandfather's penis. I accept her testimony on this point, particularly since it was given under cross-examination.

[28] Child's Fatigue and Confusion

At this point into the cross-examination, I observed that the complainant was becoming very tired and, as a result, confused. For example, with respect to what she told the officer in her statement, she said: "I thought and yes, but I thought-I think I didn't remember…I think I didn't remember that I didn't tell her anything else". Counsel then suggested to I. (T.) that when she talked to the police interviewer, "the only thing she could remember telling her mom was that she saw grandpa's penis; that's all, right?" To which question I. (T.) answered: "I think so." I found this question confusing. It very much seemed to be an attempt to get I. (T.)'s comment on this point into the record without bringing into evidence other related or relevant statements made by I. (T.) to the police officer who took that statement from her. If this was the intention, I find that it failed in that I. (T.)'s answer was as evasive as a few of the other answers given by her in her testimony.

[29] Duration of Touching — Suggestibility

When asked next about how long she had touched her grandpa's penis, I. (T.) answered: "I'm not sure". Counsel persisted, asking her: "Do you have any idea at all?" She replied: "No". Counsel then followed by suggesting that "it could have been for one second and maybe five minutes. Fair enough?" To which I. (T.) answered "Yes". The issue of suggestibility aside, I find that it is not crucial to a determination of whether the alleged touching took place to know exactly how long it went on absent other evidence related to the allegation and providing of course that the acknowledged time frame is not impossible or unreasonable. Again, I find that the attempt to demonstrate the child's lack of recall fails by the way the suggestion was put to her. Both suggested times leave the correct answer somewhere in between.

[30] Grandfather's Clothing and Bathroom Incident

It was suggested to I. (T.) that when she came into her grandparents' bedroom and found her grandfather lying on his back on the bed, it looked like he was sleeping. To this suggestion, she replied: "Not really!" She then went on to correct defence counsel that when she had walked into the room, he was in the adjoining bathroom and that from this bathroom he came out and went onto the bed. I. (T.) recalled that he was in the shower when she first saw him. She said that her grandfather saw her but that he did not do anything then. She agreed that he did not have any clothes on when he was in the shower. When chastised by defence counsel that perhaps she ought to have left the room right away when she saw her grandfather without any clothes on, she said that she did not remember him coming out of the shower but she did remember him using a towel to dry himself. She agreed there was no touching at all in the bathroom. While she subsequently testified that her grandfather had touched her in the bathroom, she eventually agreed that he had not. She also agreed that her grandfather put on pants and a shirt and that he then went to lie down on the bed. This recollection is important as it provides a good gauge of I. (T.)'s memory. While there was no evidence except I. (T.)'s that her grandfather had dressed himself after he came out of the shower before coming into the adjoining bedroom, this evidence fits with her allegation given that, with I. (T.)'s father and grandmother somewhere about, it is not likely that he would have come into the bedroom and got onto the bed without any clothes on. I find it highly unlikely that an offence of his nature would have taken place where it did, at the time it did and in the circumstances it did with the grandfather naked. In fairness, however, and as she tired in her cross-examination, I. (T.) later recalled that he had taken off his pants and then returned to her original answer that he was wearing a shirt and pants when he lay down on the bed.

[31] Confusion About Details

At this point, I. (T.) became unsure because, as she agreed, it was a hard for her to remember what happened. Counsel now referred I. (T.) to her statement and what she told the officer about touching her grandfather's penis. He noted that when asked to show the officer what she had done with her hands, she had answered "I forget what I was doing". This prompted defence counsel to elicit from I. (T.) the response that she could not remember what she was doing with her hands when she was touching his penis. It is clear that this line of questioning was confusing to I. (T.). Her evidence in cross-examination on that point suggests that she had touched her grandfather's penis with both of her hands. Counsel did not attempt to clarify the confusion between what she had told the investigating officer that she had played with his penis, and that she forgot what she was doing when touching her grandfather's penis with her hands. While it is commonly accepted that memory is better when it is closer to an event than later, it is not unusual for evidence to be recalled at a later time when one's memory is triggered by a line of questioning revisiting what happened.

[32] Penis Description and Vaginal Contact

As the cross-examination continued, I felt I. (T.) was becoming more and more tired and confused. Questioned after a recess about what her grandfather's penis looked like and what she had told the police investigator about this, she agreed that she told the officer that she did not remember. She was clear about the confusion that arose when the police investigator asked her if her grandfather had touched her in the vaginal area and agreed that at one point when the police investigator tried to clarify whether he had touched her there, she said that she meant "No". While it was not alleged that I. (T.)'s grandfather had touched her, the reply by I. (T.) offers a good indication that she was not inclined to confabulate.

[33] Description of Penis Condition

Reading from the transcript of the statement given to the police, defence counsel then turned to how she had described her grandfather's penis when holding it with both hands as "soft and hard." Counsel put to I. (T.) the question of what she meant by "soft and hard", suggesting to her that her description might mean that it was "hard like a table and soft and mushy like play dough". Counsel pointed out to her that in answer to the police investigator's question about whether her grandfather's penis was first soft and then hard, she told the police investigator that it was soft and hard at the same time. From a common knowledge of biology, it is clear that the male penis can go from a soft condition to a hard condition and back prior to intercourse or sexual excitement. I do not therefore think that I. (T.)'s answer is that puzzling, even if the suggestion is that she was confused about this issue. Assessing her reply, I do not find it puzzling or indicative of the inference that I. (T.) did not recall what happened to her grandfather's penis after she touched it.

[34] Recollection of Disclosure

In her evidence, I. (T.) indicated she did not remember how the touching episode came to an end. She agreed, however, that she told the police investigator that when she first spoke to her mom, all she said was that she had seen grandpa's penis and that when asked, she said that she told the officer: "I don't think anything." Given her evidence in chief as well as the consistency between that evidence and what she told the police investigator (as verified solely by the answers she gave in cross-examination), I am unable to conclude that this child only told her mother that she had seen her grandfather's penis. If this is what she told the police investigator she told her mother, then I. (T.), a six-year-old child at the time, was certainly free to offer a better recollection of events at trial about what happened to her than what she initially disclosed to the police investigator.

[35] Grandfather's Pants and Final Clarifications

The last major point of cross-examination dealt with the issue of whether I. (T.)'s grandfather had pants on or not at the time of the alleged offence. Returning to this topic at the end of his cross-examination, defence counsel suggested to I. (T.) that her grandfather did have pants on, the question being whether his penis was underneath his pants when she touched it. To this question, I. (T.) replied: "Well actually, yeah". Pursuing this line of questioning and suggesting to I. (T.) that she had rubbed the area of his pants where his penis was, she again replied: "Actually, I think he didn't have his pants on", but that she was not really sure about this. Once again, when asked where she was on the bed when she touched his penis and whether she was beside him, between his legs or on top of him, she again answered: "I was between his legs". When asked whether she was sitting up or lying down, she replied: "I was sitting up". When pressed on whether her grandfather had his pants on or off and that she didn't know whether they were on or off, she agreed. When asked whether she remembered him taking his pants off, she answered "Yeah". She would change her mind on this matter in the end. Lastly, when asked whether her grandfather had asked her to treat the whole episode as "our little secret", she agreed that he had never said anything like that to her.

[36] Materiality of Pants Issue

While the issue of whether I. (T.)'s grandfather had his pants on or off when she touched his penis is material one, it alone is not determinative of that issue. Sexual touching can be made out whether there is contact directly on a sexual part of the body or on clothing worn over that part of the body. The evidence respecting the occurrence an offence must be weighed and considered as a whole.

ASSESSMENT

[37] Uncontradicted Evidence

How then do I assess I. (T.)'s evidence in this matter? I note first that it is uncontradicted evidence, the accused having opted not to testify and there being no other witnesses to the actual events constituting the alleged offence. I must determine how reliable that evidence is and whether it was shaken in cross-examination sufficiently to render it unreliable and therefore not credible.

[38] Motive for Fabrication

In evaluating the reliability of I. (T.)'s evidence, I must first look at possible motives for fabrication and misleading. I must determine whether there was any reason for I. (T.) to make the disclosures that she did to her mother and the investigating police officer. On the basis of the evidence before me, I find that there was no motivation on I. (T.)'s part to say the things that she did about her grandfather. Even if she was, as her mother indicated to the police and the court, interested in "peeking at" the male sexual organ, there was no evidence indicating that she had a history or was in the practice of making up stories or confabulating.

[39] Absence of Parental Motivation

I do not find that the custody case in which her parents engaged in over a number of years prior to this incident motivated her mother to suggest to her that her grandfather had acted inappropriately with her. The outcome of this litigation was in her favour and her evidence was that there was no outstanding animosity between her and her ex-spouse, the accused's son. Arrangements with respect to summer vacations were not uncomplicated but were agreed to by her mother, her ex-spouse and his parents. Her mother's initial reaction certainly suggested that she was not prepared to think the worst of her former father-in-law. The very circumstances in which the allegations came to light support the conclusion that there was no scripting of the child's disclosure by her mother.

[40] Supreme Court Guidance on Child Evidence

In two leading decisions, R v B. (G.), [1990] 2 S.C.R. 30, and R v W. (R.), [1992] 2 S.C.R.122, the Court suggested that there might be a different approach to the assessment of children's evidence.

[41] Common Sense Approach in R v B.(G.)

In R. v B. (G.), [1990] 2 S.C.R. 30, and in R v W. (R.), [1992] S.C.R. 122, the Supreme Court of Canada addressed the issue about how to approach a child's evidence. In R. v B.(G.), Wilson J. talked about taking a "common sense" approach to such evidence, calling upon trial judges not to impose "the same exacting on them (children) as it does on adults" (see page 55). She opposed the lowering of standards with respect to such evidence reaffirming, however, it had to pass the test of proof beyond a reasonable doubt.

[42] Common Sense Approach in R v W.(R.)

In R. v W. (R.), Chief Justice Beverly McLachlin (as she then was), advocated for Justice Wilson's "common sense" approach to dealing with children's evidence, noting that the old doctrine respecting the inherent unreliability of children's evidence with its proviso that such evidence should be treated with special caution was no longer applicable. She opined that it might be wrong to apply the test for credibility used with respect to adult evidence to the evidence of children. Citing Justice Wilson's decision in R. v B. (G.), she noted 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" (page 133). Like her colleague, Justice McLachlin also cautioned about abandoning the standard of proof beyond a reasonable doubt in determining the guilt or innocence of an accused. She reaffirmed the continuing need for it, stating that "…this (a common sense approach) did 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" (page 134).

[43] Implementation of Common Sense Approach

The need for such an approach to the assessment of children's evidence remains real, as those who are called to deal with such evidence know. The "common sense" approach is persuasive but the guidelines to its actual implementation remain vague. In dealing with such evidence in the present matter, I attempted to determine what of I. (T.)'s evidence had withstood the strong cross-examination brought by defence counsel and whether the parts that survived my assessment proved beyond a reasonable doubt the accused's guilt on the whole of the evidence. I found that language was a problem for I. (T.). Clearly, at her age, six at the time she complained and seven at the time she testified, her linguistic skills and her ability to formulate her thoughts were deficient by adult standards. So too was her ability to process events occurring in her life. When I. (T.) used the word "actually", more than once, to correct something she had said, I got the impression that she was trying her best tell the truth and relate what had happened to her. She was very open to suggestions such that even under less scrutiny, when being examined by a trained interview police officer, she already had difficulty remembering certain details of her experience. This was born out in her cross-examination on the statement she gave to the police at the time she made her disclosure. While that statement was not put into evidence, parts of it entered into evidence indirectly as a result of her response to questions put to her in cross-examination.

[44] Soft and Hard Description

This was particularly true, for example, with respect to her experience with her grandfather's penis. At first blush, she appeared to say something contradictory, describing his penis as both soft and hard at the same time. While we do not have other evidence of in what state I. (T.) saw her grandfather's penis, it seems clear that if she did put her two hands around his penis, it reasonably could have at one point been softer than harder and that part of his penis could have had both a softer and harder aspect depending on where I.T. touched it and for how long she touched it.

[45] Memory Fading on Embarrassing Details

In reviewing the evidence, I found that when she was pressed to describe something or an act that might have been embarrassing to her, such as how she touched her grandfather's penis, I. (T.)'s memory seem to either fade or become unavailable. It must remembered that this child, while curious, knew very little about sexuality and the functioning of the human body at the time she made her disclosure. If the events she described occurred as she testified, it would have been intriguing to her. This is perhaps why her disclosure to her mother seemed to come out of nowhere after she returned home from summer vacation. The fact that I. (T.)'s experience with her grandfather in this matter did not involve any pain or trauma on her part, coupled with the fact that she had otherwise had a good vacation with her grandparents, could explain why she did not immediately complain or speak about it.

[46] Steadfastness on Essential Points

While I. (T.)'s cross-examination was thorough, I find that cross-examination of this child by reference to what she had told the police interviewer a year earlier caused her confusion. Her refuge in this confusion was to indicate more than once that she did not remember details about what had happened. I am not all surprised by her confusion on certain points which did arise in her cross-examination. What does impress me, though, is the steadfastness of her testimony on essential points of the events which are before this court.

[47] Core Elements of Evidence

Looking at her evidence as a whole, I find that I. (T.) did not resile from the principal points of her evidence relating to her sexual encounter with her grandfather on her grandparent's bed. She may have been confused about whether there was touching in the grandparent's bathroom (that is not what is principally alleged by the Crown) but what emerges from her evidence is clear. She was alone with her grandfather. She had first noticed him showering in the bathroom adjoining her grandparents' bedroom. They ended up on the grandparents' bed where she touched his penis with both of her hands with both hands. The experience was not traumatic to I. (T.) and would have satisfied her curiosity about the male penis, the event having taken place in the company of someone she liked. While she did not recall her grandfather actually speaking to her during the incident, it is impossible not to infer that he did invite her to do so by his words or action.

[48] Findings of Fact

I find that I. (T.) saw her grandfather's penis when he was coming out of the shower in the bathroom ensuite to her grandparent's bedroom. I find that both she and her grandfather ended up on the grandparent's bed where she touched his penis with both hands while she was kneeling or positioned between his legs and that during this incident his penis had been at a time hard and soft at the same time. I further find that while I. (T.)'s inability to recollect some of the details of this incident was poor, this not surprising for a seven-year-old child trying to remember what happened over a year earlier and trying to remember what she told the police interviewer shortly after she made her disclosure to her mother.

[49] Credibility Assessment

On the whole, I felt that I. (T.)'s evidence withstood the very rigorous cross-examination visited on her by defence counsel, notwithstanding her mental and emotional capacity. This is not a case where I had to assess and weigh the reliability and credibility of other witnesses, with the exception of her mother's evidence, of course. The Crown's case rested almost exclusively on the evidence of the child complainant. No evidence was led to contradict this evidence, so the real task was to assess the reliability and the credibility that evidence. The assessment of evidence requires a look at the whole of the evidence including the context in which it arises.

[50] Rejection of Suggested Recantation

While I. (T.) may have been persuaded to accept that she was confused and didn't remember much if anything about the events and circumstances in this matter, I cannot agree with her testimony in this respect under the circumstances in which it was obtained. At the close of his cross-examination, defence counsel asked I. (T.) (page 64 of the transcript) the following questions:

Question: So when we look at, what we've talked about here today, things are all mixed up in your mind, right?

Answer: Yes.

Question: "You're not really sure of the truth any more, are you?

Answer: Yeah.

Question: In fact, they (sic) were mixed up when you spoke to Joanne (the police interviewer), in August of last year, right?

Answer: Yes.

Question: And you're not even sure whether or not you touched Grandpa's penis at all anymore. Fair enough? Fair enough?

Answer: Yeah.

[51] Adult Questions to Child Witness

These were adult questions put to a child witness. If such answers would have been given by an adult or even an adolescent, I would have been inclined to accept them as putting an end to the matter. As put to a seven–year-old child, I cannot accept that they establish a recantation of the key elements of her evidence.

[52] Conviction

I am, then, led by the whole of the evidence to conclude that the Crown has proven its charge of invitation to sexual touching against M.T. beyond a reasonable doubt. I believe the evidence of the child complainant in this case, notwithstanding that she was not clear on every matter on which she was cross-examined. I have found her evidence to be both reliable and credible where it addresses the main elements of the charge. I therefore convict the accused of the offence with which he is charged.

Released: April 30, 2018

Justice Andre L. Guay