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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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: May 16, 2018

Between:

Her Majesty the Queen

— AND —

G.N.

Before: Justice F. Javed

Heard on: April 4, 5, 2018

Reasons for Judgment released on: May 16, 2018

Counsel:

• G. Hendry, counsel for the Crown
• F. Mirza, counsel for the defendant

Reasons for Judgment

F. Javed J.:

A. INTRODUCTION

[1] G.N. is charged with two counts of sexual assault and two counts of sexual interference in relation to his distant cousin, between the ages of 7 to 9 years old. The allegations came to light when the complainant turned 14 years of age and involve two incidents. The first involved vaginal touching when the parties were at a family function in a bedroom where others may have been present ("the bedroom incident"). The second involved an allegation of touching her anus during a piggy-back when the two were in a lake during a camping trip ("the camping incident").

[2] The complainant testified at the age of 15 and did so by means of closed-circuit television (CCTV). She was supported by a member of the Victim Witness Assistance Program. Counsel reasonably conceded her videotaped statement to the police was admissible under s. 715.1 of the Criminal Code.

[3] G.N. testified and denied both incidents. His position is that he never engaged in any sexual impropriety as he barely spent time with the complainant. Alternatively, the complainant's account was inherently unreliable. Given the familial and cultural context of the allegations, he argues both incidents are implausible.

[4] The Crown submits the denials of G.N. should be rejected. The complainant gave a compelling, coherent and reliable account which should be believed. The Crown submits the complainant didn't have an axe to grind and did her best recalling difficult events that occurred many years ago. The reliability concerns do not detract from her credibility.

[5] This case requires an assessment of the credibility and reliability of the conflicting accounts. I can accept some, all or none of the evidence presented.

[6] In a criminal trial, the Crown carries the heavy burden of proving the guilt of an accused person beyond a reasonable doubt. Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[7] There was no onus on G.N. to prove his innocence. The burden remains with the Crown to prove his guilt. In cases involving credibility assessments, the law requires that I apply the three-part test set out in W.D. v. The Queen, [1991] 1 S.C.R. 742 ("WD"). G.N. chose to testify in this case. In simple terms, the WD doctrine requires me to resolve three questions:

(1) Do I believe G.N.? If so, I must find him not guilty;

(2) Even if I don't believe G.N., does his evidence leave me with reasonable doubt? If so, I must find him not guilty;

(3) Even if I reject G.N.'s evidence, based on the evidence which I do accept, has the Crown proven its case beyond a reasonable doubt? If so, I must find him guilty.

[8] The main issue in this case requires an assessment of credibility. I must consider whether G.N.'s denials of sexually assaulting the complainant in the context of the evidence as a whole, is capable of raising a reasonable doubt about his guilt.

[9] There is no dispute that if I accept the account of the complainant, the bedroom incident makes out sexual offences. Moreover, the circumstances of the camping incident would also qualify as sexual offences, because if believed, the touching would have violated the complainant's sexual integrity.

[10] For reasons that follow, I have concluded that the Crown has not discharged their burden of proving G.N.'s guilt beyond a reasonable doubt. In summary, I believed G.N.'s core denials even though I had some difficulties with his evidence. However, I had greater difficulties with the complainant's evidence. In my view, it was simply too unreliable to carry the Crown's heavy burden of proof.

B. SUMMARY OF THE EVIDENCE

[11] Before I turn to my analysis, I will summarize the evidence for context starting with some background facts which are not in dispute.

The Nature of the Relationship

[12] The parties are distant relatives. Specifically, G.N.'s step-mother is the cousin of the complainant's father. They referred to each other as "extended cousins". Growing up, the complainant referred to G.N. as "N". It's not disputed that this is the middle name of the accused.

[13] There is a 15-year age gap between the parties. Both testified they weren't close growing up and would see each other occasionally at family functions. Outside of these functions, they wouldn't spend time together and wouldn't talk to each other except with the occasional friendly greeting.

The Cultural and Religious Context

[14] Both parties are from Afghanistan. Both are practicing Muslims, adhering to the Islamic religion. Growing up, religious doctrine was rooted in the family's cultural practice, which embraces a conservative way of life. For example, even at family functions, it was not uncommon for men and women to be separated and not co-mingle. The same applied for younger girls and boys although it was less strict. For the most part, children of the same sex and closest in age, mingled with each other. Of course, this excluded the standard greeting and quick conversation in passing.

The complainant grew up with a large extended family, mainly from her father's side. The family included two uncles and four or five of her father's cousins along with their children. It was common for the whole family to get together for family events, especially for religious celebrations such as the end of Ramadan or "Eid". G.N. was present for some of these occasions but not always.

[15] In 2015, G.N. married a woman from a different province of Afghanistan which stirred controversy in the extended family. As a result, his family disowned him. He maintained a good relationship with the complainant's side of the family but does not speak with his step-mother.

[16] The complainant was 15 at the time of testifying. She has three older brothers. G.N. referred to them as distant cousins. Despite the falling out, G.N. maintained a good relationship with the complainant's siblings, especially her brother who was closest in age.

The Alleged Sexual Assaults

[17] The complainant described two incidents of sexual touching. The bedroom incident involved the parties lying down on the floor of their uncle's bedroom during a family party. The complainant was wearing traditional Afghan clothing which includes a long dress called a shalwar. She claims G.N. touched her vaginal area under her shalwar. Two years later, the parties went on a family camping trip. She claims G.N. gave her a piggy-back in the water while they were playing with other cousins. She claims G.N. touched her anus with his finger.

[18] G.N. denied both incidents, testifying that the complainant's account was implausible as the two were never close and had limited contact growing up. He relied heavily on his cultural background to advance a narrative that it would have been improbable to engage in the acts alleged. This background was the subject of intense cross-examination by the Crown.

The Aftermath

[19] In March 2017, the complainant's sister, who lives in a basement apartment with her parents, hosted a dinner at her home. G.N. was invited and attended with his wife. The parties exchanged a "hello" and nothing more.

The Disclosure

[20] The circumstances of the disclosure are important in this case. The allegations came to light at school with the complainant having a casual discussion with a group of friends. She stated she was "keeping something for a long time" and her friend began to "shout out stuff" which resulted in her confirming that she had been sexually assaulted. She was forced to report the matter to her Vice Principal which culminated with a brief statement to the Toronto Police Service (TPS), then a more fulsome statement to the Durham Regional Police Service (DRPS). The complainant did not immediately name G.N. as the culprit to her friends and/or the Vice Principal.

[21] Importantly, before the complainant went to the TPS, she told her older siblings. She testified they helped her recall certain events including who would have been present at the family party and the camping trip. The siblings didn't testify, thus I don't have any evidence of post-event demeanor, the circumstances of the disclosure and how they assisted in the recollection.

[22] The Crown also didn't call the friend to whom the disclosure was made or the Vice Principal. Often this evidence isn't necessary but in my view, it would have been helpful in evaluating the overall reliability of the complainant's account which passed through some channels before the videotaped statement.

The Videotaped Statement

[23] The complainant was interviewed by Det. Adam Ahee of the DRPS on June 21, 2017. She was 14 years old at the time. Exhibit 1 is the DVD recording of the interview which was supplemented by a transcript of the interview (Exhibit 2). As I will explain, the manner in which this statement was taken was not ideal. It contributed to my ultimate assessment of her reliability because the police put words in her mouth on vital issues.

[24] I will now turn to my analysis of the conflicting accounts.

C. ANALYSIS

[25] A criminal trial is not a credibility contest. It is not my function to prefer one side over the other. I must assess the evidence as a whole to determine if the Crown has proven the guilt of G.N. beyond a reasonable doubt. This is a heavy burden.

The Credibility of Children

[26] Assessing the credibility of a witness is not an easy exercise. A credible witness may be sincere but the law paints credibility with a broader brush. There is a difference between a witness who is dishonest and one who is unreliable: R. v. H.C., 2009 ONCA 5. A witness may be honest but unreliable due to many factors such as imperfect recall, lack of understanding, limited ability to communicate and faulty observation. In some cases, reliability becomes the paramount consideration: R. v. Norman, 16 O.R. (3d) 295 (Ont. C.A.) at para. 47.

[27] The defence anchored its submissions on the complainant's unreliability arguing that her memory was simply too "flawed". Given the cultural context, the defence argues the acts complained of simply make no sense and when stacked beside G.N.'s denials, should easily leave the court with reasonable doubt about his guilt.

[28] The Crown focused its submissions on other factors including the complainant's status as a child witness, her credible demeanor and the lack of any motive to lie. The Crown argues the complainant did her best to recall difficult events and the reliability problems were not fatal. Further, the Crown submits I should be careful about permitting G.N. to hide behind his culture as a means to deny the offences.

[29] I tend to agree with the Crown, but only in part. As these reasons will explain, the complainant presented as a sincere witness but there were simply too many problems with her recollection which leaves the honesty of her account on a shaky footing. When the reliability concerns are viewed as a whole, they are not enough to allow the Crown to overcome the high hurdle of proof beyond a reasonable doubt. I will address the Crown's submissions in turn.

[30] First, on the issue of motive, the absence of a motive to fabricate an allegation is a proper factor for consideration in the fact-finding process: R. v. Jackson, [1995] OJ No. 2471 (C.A.). I agree there is no specific evidence that the complainant has a proven motive to lie but this issue is more nuanced given how G.N. became a suspect. The defence argued that G.N. was an easy target as he was ostracized for choosing to marry the "wrong" person as she was from a different part of Afghanistan. The ostracization may be true, but in my view, doesn't serve as a reason to implicate G.N. It does however, provide additional context to the reliability of the complainant's account because G.N. was narrowed as a suspect with the assistance of the complainant's siblings. I accept that G.N.'s choice of who to marry would have had less impact on the younger cousins, but the siblings didn't testify thus I do not know if it factored at all in their efforts to assist the complainant with her memory. For example, I don't know if G.N. became the suspect because he is the proverbial 'black sheep' of the family and it would be 'sensible' to the family that he would betray their trust and commit a criminal offence. I would be speculating about this. While there is no specific motive to lie, there is some life to the submission that G.N. was named as a suspect through an unreliable process.

[31] Second, I agree with the Crown that the complainant presented as a compelling witness but courts have reminded that using demeanor evidence to resolve a credibility dispute must be approached with caution: R. v. J.A.A., 2011 SCC 17. This is especially so in a case involving children where intangible factors such as tone of voice, appearance and general manner could easily deceive a trier of fact. I have considered the demeanor of both witnesses in the context of the evidence as a whole.

[32] Third, the complainant's status as a child witness does trigger other legal principles which I have kept in mind. The Supreme Court has reminded that it may be wrong to apply adult tests for credibility to the evidence of children. In R. v. B.(G.), [1990] 2 SCR 30 at 54-55, the Supreme Court said: "while children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean they have misconceived what happened to them and who did it".

[33] Instead, the law requires trial judges to assess the intelligence, maturity, experience and cultural background of the child, then decide whether any of the alleged inconsistencies or inaccuracies in the evidence are of significance given the witness's background that is before the court. However, the mere fact that the witness is a child does not mean that inconsistencies or inaccuracies lose their significance. It is incumbent to consider the evidence as a whole in the context of the child's evidence: R. v. Horton, 1999 BCCA 150, [1999] 133 CCC (3d) 340 at 348 (BCCA).

Inconsistencies and Inaccuracies

[34] In general, there is no obligation on a trial judge to address each piece of evidence and every alleged inconsistency in a complainant's evidence: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17.

[35] In cases where a complainant testifies as an adult about events that took place as a child, McLachlin J. held that the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying: R. v. W. (R.), [1992] S.C.J. No. 56 at para. 26. Here, the complainant was not an adult but was asked about events that happened when she was very young. I have kept this in mind.

[36] I have also considered that inconsistencies on minor matters of detail are to be expected and don't generally affect the credibility of the witness. However, where the inconsistency involves a material matter in which an honest witness is unlikely to be mistaken, the inconsistency can "demonstrate a carelessness with the truth". R. v. M.G., [1994] O.J. No. 2086 at para. 23. In this vein, Justice Finlayson in R. v. Stewart (1994), 18 O.R. (3d) 509 (Ont. C.A.) at 519-520, reminded that the trial judge should look at the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue.

[37] With these principles in mind, I will assess the evidence of both parties. Given my ultimate conclusion that I had greater concerns with the reliability of the complainant's account, I begin with her evidence first.

Assessment of the Complainant's Evidence

(i) Overview and Impression

[38] The complainant presented as a sincere witness. She was 15 years old at the time of testifying and appeared very intelligent. She withstood a probing and careful cross-examination by the defence which was aimed at revealing the unreliability of her account as opposed to painting her as dishonest. The Crown cautions against reading too much into her cross-examination because it was in a "rapid fire" format and left little room for explanation. The Crown says this explains some of the reliability problems.

[39] With respect, I disagree.

[40] While the complainant was soft-spoken, she did not present as being intimidated by the questioning. I have considered that she is a practicing Muslim and talking about sexual activity could be uncomfortable but she answered the questions with care and confidence. She did not shy away from uncomfortable questions. While she agreed with much of what was put to her, when there was something she disagreed with, she was quick to point it out. She appeared firm in her account.

[41] That said, I agree with the defence that her memory was problematic. I did not see this as a communication or capacity issue. Rather, it was a substantive problem with her evidence that goes to credibility. The reliability of her account was impacted by events that occurred outside of the courtroom. This included her disclosure of the allegation to her siblings and regrettably, the circumstances of the police interview.

(ii) The Disclosure & Collusion Argument

[42] In the usual course, it would be perfectly normal for a child to confide in a family member about being sexually assaulted. However, in this case the disclosure was problematic because it did not just involve disclosing the event, it went further and assisted the complainant in piecing together the events to recall a certain narrative. This may be expected for a very young child, but it should not have happened with a 14-year-old child. To this extent, I agree with the defence that her discussions with her siblings may have inadvertently tainted the allegation, vis-à-vis G.N.

[43] The complainant testified that she didn't name G.N. to either her friend at school or the Vice Principal. The first family member she told was her older brother who contacted the TPS. Her brother was anxious to know who assaulted her and how. In cross-examination, she admitted that she didn't immediately name G.N. to her brother but rather did so later on when she went to her sister's home, when a police officer from TPS attended. It's unclear why she didn't immediately tell her brother. I can understand some reluctance with conservative parents, but not an older sibling.

[44] On June 6, 2017, an officer from the TPS attended at her home. This is somewhat unusual because in the usual course, a complainant attends at the police station. In any event, several of her family members (not the parents) were present when the police attended. She named G.N. as the person involved, however this was after she had spoken with her siblings. In cross-examination, she denied they were feeding information to her but instead said they helped with the timeline of events and who was present, which ostensibly included the 2010 Eid party and the 2012 camping trip.

[45] The defence submits the intervening contact with the complainant's siblings prior to speaking with the police may have resulted in indirect collusion. There is some merit to this argument because the law obliges the trial judge to look at all the circumstances to determine if there was any opportunity to collude and the possibilities that these opportunities were used for this purpose: R. v. Burke, [1996] 1 SCR 474 at para. 45.

[46] In this case, there was certainly ample opportunity to collude but I'm not prepared to go further and find specific evidence of collusion. However, I do agree that the circumstances of the disclosure were not ideal and there's a reasonable inference that there may have been inadvertent tainting of the complainant's recollection that led to G.N. being named as the suspect. The Crown didn't call evidence to weaken this inference. I am troubled that the complainant didn't immediately name G.N. when given the opportunity both to her friend, Vice Principal and brother. Ideally, the complainant should have taken her complaint to the police. I appreciate there are unique family dynamics in implicating a fellow family member in a serious criminal allegation. However, the flip side is once a person is named, the allegation can become entrenched – because of the family dynamics.

[47] On this record, there is a reasonable inference which wasn't displaced that there was inadvertent tainting relating to the circumstances of how G.N. was named as a suspect.

(iii) The Police Interview

[48] Capturing the evidence of sexual assault complainants is not an easy task. For this reason, the law permits complainants to be interviewed by the police in the friendly confines of a police station as opposed to a less friendly environment of a courtroom. This case was no different. The complainant was interviewed by Det. Adam Ahee of the DRPS. Her account was videotaped and reduced to 51 pages of a transcript. I have carefully reviewed the DVD recording and the accompanying transcript. I make the following general observations.

[49] The complainant attended at the police station with her older brother. She was soft-spoken with a very quiet demeanor. She was 14 years old at the time and interviewed by Det. Ahee who is male. I do not know if this created a barrier but it was clear to me that she was very uncomfortable describing the events. Context is everything and in my view, it would have been preferable for her to be interviewed by a female police officer given her cultural and religious background. She wasn't.

[50] The Supreme Court has instructed that police officers interviewing child witnesses should preferably use simple and open-ended questions: R. v. C.C.F., [1997] 3 S.C.R. 1183 at para. 53. In some cases, it may be appropriate to use leading questions, for example, when the witness is very young and there's a communication issue. To the extent that it's possible, an interviewer should not put words in the interviewee's mouth because it's the interviewee who is held to account for the words chosen in the courtroom. Each interview will turn on its own facts and any issues go to issues of weight not admissibility.

[51] I had some concerns with this interview. I do not doubt that Det. Ahee approached his task with professionalism. I'm sure this wasn't his first interview of a child witness, but with great respect, parts of the interview were problematic.

[52] First, on some occasions, Det. Ahee misapprehended the complainant's comments. Det. Ahee took an unusual approach of attempting to summarize the answer of the complainant before he asked a follow-up question – sometimes to clarify the answer. On most occasions, he correctly summarized the evidence but in others he didn't. When this happens in the courtroom, a trial judge is obligated to ensure that the examiner has correctly summarized the evidence of the witness, failing which there may be a misapprehension of the evidence. A conviction on misapprehended evidence can result in a miscarriage of justice.

[53] One example will highlight this problem. During the interview, Det. Ahee sought to clarify the positioning of G.N. during the bedroom incident. This is an important area because the defence argues that the account described by the complainant is improbable, therefore impacts the complainant's credibility and reliability. Earlier in her statement, it's clear the complainant was unsure about his positioning. The following was the exchange:

AHEE: Okay, where are you?

COMPLAINANT: I'm on the side of the bed, on the ground.

AHEE: Side of the bed on the ground? Complainant, you're sitting?

COMPLAINANT: Yeah, or laying down.

AHEE: You were laying down? Complainant, who's with you?

COMPLAINANT: He was laying down next to me.

Det. Ahee didn't clarify the complainant's evidence. He asked if she was sitting and she responded with uncertainty "yeah or laying down". He accepted that G.N. was laying down, which the complainant never corrected. It's clear she was unsure and he should have clarified her position.

[54] Later in the interview, he came back to this area after consulting with his partner. The exchange was as follows:

AHEE: Okay? So, I'd like to take you back to um, the first incident that you told me about with N [full name omitted], when you're lying beside him, and he's lying – he's lying beside you. You mentioned he's massaging you, your arm. Complainant, is he laying on his back, and you're laying on your back?

COMPLAINANT: Mmm. Either his back or like on his side …

AHEE: On his side? And what hand is he using to massage your arm?

COMPLAINANT: The right hand, I'm pretty sure.

Again, the complainant was unsure about G.N.'s positioning but Det. Ahee attributed his position to be on his side. This is critical because there is more opportunity for a person to commit a sexual act if one is on their side as opposed to one's back where one would have to reach across the complainant's body and place his hands under her traditional dress.

[55] The problem was compounded in the courtroom because in cross-examination, the complainant was uncertain about many details, which arose from her videotaped statement. Not only did she agree with the suggestion that G.N. was seated to her right she also agreed that he was laying on his back next to her. She agreed that she left out many details.

[56] In addition, Det. Ahee put words in the complainant's mouth. In some cases, this may be of no consequence but in this case, it mattered, especially because it happened on an important point. For example, the following was gleaned about the bedroom incident:

AHEE: Okay. And you said – you say that he's sort of massaging your arm, and then your side. You – you mentioned your side.

COMPLAINANT: I'm – I – I'm not really – I don't remember exactly, but I'm pretty sure he did.

AHEE: Okay. And then what happens after that?

COMPLAINANT: He was touching down here.

AHEE: Okay, down here, you're saying your – we'll call your genital area?

COMPLAINANT: Yeah.

AHEE: Okay. Under your clothes?

COMPLAINANT: Yes.

AHEE: I don't want to put words in your mouth, Complainant. Correct me if I'm wrong. All right? Um, Complainant, what were you wearing?

In the above exchange, Det. Ahee called the area her "genital area" which was preceded by his choice of words "under your clothes". In a courtroom, an examiner-in-chief cannot lead on important issues unless of course the witness is being cross-examined. Det. Ahee cautioned against putting words in her mouth but likely through inadvertence, ended up doing this. It's not enough to put the onus on the interviewee to correct the officer because this ignores the context of the interview, which involves a male interviewing a young Muslim female about a difficult topic. My comments should not be taken to disparage Det. Ahee. On the contrary, he was professional and courteous. However, the complainant was able to communicate her evidence and didn't need assistance with giving a full account.

[57] I have kept in mind that I must assess the evidence of the complainant as a whole which includes her cross-examination in the courtroom. It's not just the videotaped statement which must be considered and one might argue that any issues can and should be clarified under oath. However, in this case, the issues did not get clarified and instead became more muddied. While there is no legal requirement of corroboration, the complainant's evidence was so uncertain it does not come close to be a clear and convincing account which on its own is enough to meet the Crown's high burden.

[58] I will now examine the two incidents in greater detail and make my findings of fact.

(iv) The Bedroom Incident

[59] The complainant testified that the bedroom incident occurred when she was 7 or 8 years old or in the summer of 2010. The complainant was not confident about the timing of the events because she referenced the end of Ramadan as a reason her uncle hosted a family party. I have some reservations about the timing of the incident but recognize that children sometimes lose sight of dates. The information alleges the time frame between July 1 and August 31, 2010. I accept that she was referencing an event in the summer of 2010.

[60] The complainant testified that she was sure that the incident occurred during a family party where her aunts, uncles and cousins were all present. She was confident it was her uncle's home. She was upstairs in her older cousin's bedroom with 3 to 4 other people. I find that the complainant was not reliable in recalling who was present. She originally told the police it was three "teenagers" but then narrowed this to three specific people with the assistance of her siblings, being her two older cousins and a younger brother. She admitted she was "guessing" it was two specific individuals. They were watching television and laying on the ground as there was no space on the bed. I have a serious doubt who was present.

[61] The complainant explained that the bedroom has a television and there is space to the right and left of the bed. She was not sure if G.N. was already in the room or came in later and laid down on the floor to the right of the bed. He would have been visible to others if they were present. This lack of detail isn't significant but becomes important because the complainant acknowledged that in her family, it's important to have separation between males and females – even at a younger age. In other words, it would have been unusual for her to choose to lay down on the floor if G.N. was already present given the significant age gap between them. Similarly, it would have been unusual for G.N. to lay down beside her given the age and sex difference.

[62] The complainant added she was wearing traditional Afghan clothing which includes a long skirt with slits down both sides. She said G.N. began to massage her arm then using both hands went below her clothing and touched her genital area. She said the touching lasted "maybe" 10 minutes and stopped with her getting up to use the bathroom. There was no conversation between them before, during or after the touching.

[63] I have concerns with the reliability of this account for the following reasons:

[64] First, the complainant said she was wearing traditional clothing because it was a religious celebration. That makes sense. The outfit includes pants with a draw string and a long dress with two slits on the side. The complainant admitted that irrespective of G.N.'s position (which she was unsure), he would have to go under the long dress, up the shirt, under the pants and below the underwear to touch her genital area. The law requires a trial judge to test the credibility and reliability of the account against when and where it took place to determine if it was implausible: R. v. R.H.A., [2000] OJ No. 2610 (CA). In my view, given the state of her shalwar, including the location of the alleged incident and the alleged positioning of G.N., the account as described seems implausible. It would have been bold for G.N. to commit the act in his uncle's room with his whole family around.

[65] Second, the complainant said the incident lasted for 10 minutes. This too is problematic but I acknowledge that recalling the timing of events for children is difficult. However, the significance of this evidence is that the touching lasted a while (however long it was) as opposed to a quick act. Again, when this is factored into the evidentiary matrix, it becomes implausible.

[66] Third, the complainant was unsure about what preceded the sexual touching. She explained that G.N. was massaging her arm but wasn't sure if it involved one or two hands. It's hard to conceive how he could have used both hands if he was on his back. Again, it would have been a bold move – an unlikely one given the context.

[67] Fourth, as discussed above, the complainant never said the touching was under her clothes until it was put to her by Det. Ahee. She explained that she knew the difference at the time of giving her statement and was trying to be honest. In my view, this was a significant omission – one that cannot be forgiven solely on the basis that she is a child witness. I do not know if the complainant deliberately withheld this information but regardless, it was significant and calls into question her credibility: R. v. Davidson, [2017] OJ NO. 64 at para. 60 (Ont. Sup. Ct.).

[68] Overall, the complainant's account of the bedroom incident was simply too unreliable.

(v) The Camping Incident

[69] The complainant testified that the camping incident happened two years after the first which was 2010. In July 2012, she was 9 years old. She went on a family camping trip to McCrae Point in Orillia, a trip her family would take every year. On this occasion, she estimated that 20-25 people were present, including her aunts, uncles and cousins. G.N. was also present.

[70] She recalled swimming in the lake with others including G.N.'s younger brother and her older cousin. Her two cousins were having a 'hold-your-breath contest' under the water and designated her to be the counter. The water was shallow so she crawled up the back of G.N. who was taller than her. He gave her a piggy-back and held on to the bottom of her legs and thighs. The cousins would dunk their heads in water and she would count. In the course of doing so, G.N. touched her anus using his right finger under her bathing suit for about 5 minutes. She got off his back and he asked to do it again. She said no.

[71] I also have some concerns with the reliability of this account for the following reasons:

[72] First, when viewed as a whole, this incident also seems implausible. While a piggy-back in the lake is not unusual, I accept G.N.'s evidence that given the age gap, he would not have played in the water with the complainant. The context of the camping trip is important because both parties said the whole family attended which meant there were other cousins close to G.N.'s age, and cousins close to the complainant's age. It's not as if only the complainant's and G.N.'s family were present, limiting the pool of family members. I accepted G.N.'s evidence that he would stick with his cousins similar in age because of their preferred activities which would exclude the complainant because of her age.

[73] Second, the complainant testified she was wearing a bathing suit with a skirt to cover her bottom. This is consistent with the evidence that modesty demanded a more conservative bathing suit. I agree with the defence that the specific allegation would require G.N. to manoeuvre around the skirt and bottom to touch her anus. Moreover, the account makes little sense because if the object of the game was to hold one's breath under water, it would be difficult to commit the act under water. It would be more difficult if a 9-year-old child is on one's back where the focus would be on controlling one's breathing and ensuring the person didn't fall off. The story defies common sense.

[74] Third, there is an important inconsistency in the complainant's evidence. At trial, she maintained that G.N. placed his finger in her anus but she admitted telling the police that he touched her "near her bum and legs". These are two completely different details. I can't attribute this to her age and intelligence because at 14, one would know the difference between the two. Indeed, the complainant testified she knew the difference. It may be that an inadvertent touching of the "bum and legs" violated her sexual integrity but as I will explain below, I accepted G.N.'s denial of any touching as part of the camping incident.

[75] Fourth, the complainant admitted she was unsure about the timeline. She used the first incident to anchor the second which she said were two years apart. As I will explain below, I accepted G.N.'s position that he didn't attend a camping trip in 2012 but did attend one in 2014. The complainant didn't recall the trip in 2014. When I consider that she was unsure about the timing of the bedroom incident, this calls into question the timing of the camping incident as well.

(vi) Conclusion on the Complainant's Account

[76] In my view, the complainant's evidence suffered from inherent reliability problems which on its own wasn't enough to present a clear and convincing account. The case for reasonable doubt becomes stronger when I stack her evidence against G.N.'s evidence and in particular, the areas that I did accept.

Assessment of G.N.'s Evidence

(i) Overview & Impression

[77] G.N.'s position is that he didn't attend a family function at his uncle's home in 2010 and didn't go camping in 2012. He could not have committed the offences.

[78] Much like the complainant, I also had some concerns with the reliability of G.N.'s account. I did not reject his denials of sexual impropriety but did find his evidence as a whole, unbalanced. On some occasions he was evasive. For many defendants, being challenged on something you didn't do is difficult but G.N.'s problems arose in areas that shouldn't have been difficult to discuss. In particular, there were two areas of his evidence in relation to the bedroom incident which were troubling: (i) his evidence concerning the state of traditional female clothing and (ii) his confidence in not attending a family party in 2010. His denials on the camping trip were more convincing, especially given the evidence that arose from the complainant that was favorable to him: R. v. B.D., [2001] O.J. No. 198 (CA) at para. 114.

[79] I will review his evidence below.

[80] G.N. is 30 years old and has been married for 3 years. He is employed in the financial industry. He does not have a criminal record.

(ii) The Bedroom Incident

[81] In 2010, G.N. was 22 years old and was attending York University. He lived in Markham, Ontario with his father and step-brothers. In the summer months, he was working two jobs. The first was at Volkswagen as a car jockey where he worked a 9-5 pm shift with the occasional overtime. The second was at Subway restaurant which involved shift work and all day Sunday.

[82] G.N. testified that he didn't always attend family functions as he was busy with school and work. He explained that Ramadan or Eid celebrations take place twice a year in the Islamic calendar. It is hard to know the exact dates of the celebration but it was common for the family to get together at his uncle's home with the extended family. This included up to 50 family members.

[83] His uncle has a large 3-storey home with 4 bedrooms. He has four children who had their own bedrooms. During family parties, children were not allowed to go upstairs. The adults would occupy the master bedroom, his uncle's room.

[84] G.N. denied attending an Eid celebration in 2010. He acknowledged that over the years, family events blended with each other and it would be hard to recall with great precision which events he did and didn't attend. In cross-examination when challenged on his level of confidence, he maintained "he didn't believe" he went to his uncle's home in 2010.

[85] I have trouble accepting this. While I accept G.N. was busy with work and school, there's nothing to anchor his belief that he didn't attend a recurring family event. For example, if G.N. was living out of province at the time, it would be an objective basis to ensure his confidence. Apart from being busy, 2010 didn't stand out.

[86] The defence's position is that this shouldn't detract from his credibility because G.N. was simply denying a specific event which the complainant says occurred in the summer of 2010. While true, there's nothing inconsistent with denying a sexual assault while admitting it was possible he attended a family party over 8 years ago. I got the impression that G.N. was being careful about agreeing with any facts that might align with his guilt. He was guarded about possibilities. However, this alone isn't a reason to reject all of his evidence because he did agree with some facts that might be damaging which leads me to conclude that he wasn't being dishonest, just imprecise. A clear example is his admission that he did attend a camping trip in 2014. It would have been easy to deny attending any camping trip. I simply do not accept that he didn't believe attending a family party in 2010 but on the same hand, I have no reason to reject his denial that he didn't sexually assault the complainant during a family party. As I explained above, the allegation is implausible and suffers from reliability concerns.

(iii) The Clothing Evidence

[87] The second area of concern was G.N.'s evidence about the clothing worn by the complainant during the first incident. First, as a matter of common sense, I accept that it would be difficult for one to know what they wore 8 years ago unless it was a very significant event. However, G.N. took a defensive stance on this topic and only relented after some intense questioning. G.N. testified he was "familiar" with traditional Afghan clothing worn by women (and girls) but refused to adopt a suggestion put to him in cross-examination that the dress which accompanies a shalwar had slits on both sides. G.N. said he didn't pay attention to this and wouldn't know. I have trouble accepting this evidence. G.N. was clear that he had seen his mother, wife and other female members wear traditional clothing but didn't pay attention to detail. This makes little sense, especially because of the volume of family events over the years where traditional clothing would be worn. While it may blend in with each other, it is not an innocuous detail. G.N. was evasive in admitting this fact but only relented after it was suggested to him his position was "absurd". I agree with the Crown that there's a good reason to be evasive because a dress with two slits as opposed to none, allows for more opportunity to commit the offence. However, I can't make too much of this because he explained that he never tried raising his hand up the dress so he wouldn't know if it would be possible to do so. I accept this. In the end, I don't attribute this to dishonesty but rather imprecision.

(iv) The Camping Incident

[88] I had less concerns with G.N.'s evidence about the camping incident. I believed his denial that he didn't attend a family camping trip in 2012. I further believed him that he attended a family camping trip in 2014 and didn't touch the complainant's anus.

[89] G.N. acknowledged going on family camping trips at McCrae Point. He even acknowledged that the complainant was present on these trips although there was no reason to spend time with her. In cross-examination, he agreed that over the years, the trips blended in with each other with the same family members and similar activities: swimming, volleyball and soccer. I accept this.

[90] G.N. testified he was confident he didn't attend the trip in 2012 because it's a discrete event which sticks out in his mind. The last trip he took was in 2014 and he didn't attempt to distance himself from the complainant because he said she was likely present although he couldn't recall one way or the other. He explained that she too would swim in the lake but maintained that he would have no reason to have any contact with her because his cousins that were similar in age were also present and he would spend all his time with them. I accept this because it makes sense. The 15-year age gap didn't rule out all contact but it would limit one's ability to meaningfully participate in specific team activities such as volleyball and soccer. G.N. said he never played a game where he would hold his breath under water. I also accept this because this is a discrete game, unlike simply swimming in a lake.

(v) The Visit to the Complainant's Sister in 2017

[91] The Crown submits G.N. was internally inconsistent on his evidence of not mingling with his female cousins because he chose to visit the complainant's sister in 2017. I don't see this as a material inconsistency. G.N. testified he chose to attend the complainant's sister's home because she invited him and his wife for dinner. Invariably, this would involve mingling with his female counterparts. This isn't inconsistent because the invitation involved his wife too, not just him alone. G.N. said he always maintained a good relationship with the complainant's side of the family. It wasn't unusual to attend the dinner party.

[92] The Crown also submits that G.N. similarly underemphasized his contact with the complainant as a means to distance himself from the allegations. I disagree. G.N. testified that he didn't interact with the complainant because there is a 15-year age gap between them. He didn't go out of his way to talk to his female cousins and aunts. I accept this evidence because of the cultural and religious context. While limiting contact with female family members might present as unusual to a non-Muslim, it would be an error for me to evaluate G.N.'s evidence from a different lens. Both G.N. and the complainant adhere to the Islamic faith but do so to differing degrees. This is sensible because religious observation is highly personal and in some cases situational. For example, Islamic women may choose to wear a hijab out of the family home and not wear one in the home. This doesn't mean they are less orthodox than those who wear one all the time.

[93] In this case, G.N. testified he didn't go out of his way to talk to his female cousins and aunts. He would say the customary hello and proceed to hang out with his male cousins. I accept this. G.N. didn't completely deny avoiding his female cousins. To some extent, G.N. was corroborated by the complainant on this issue because she too testified that the pair weren't close. There was a significant age gap and they didn't talk or interact outside family events.

(vi) Conclusion on G.N.'s Account

[94] Overall, I had some concerns with the imprecision of G.N.'s evidence. He was over-confident but I didn't get the impression he was being dishonest. He withstood a probing cross-examination and his denials make sense. In the context of the evidence as a whole, they make much more sense.

D. CONCLUSION

[95] For the above reasons, when I carefully consider the WD doctrine, the evidence as a whole only points to an acquittal. The burden of proof in a criminal trial is a high one and was not met in this case. Accordingly, G.N. will be found not guilty of all counts.

Released: May 16, 2018

Mr. Justice F. Javed