WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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 29, 2019

Court File No.: 18-Y-120

Between:

Her Majesty the Queen

— and —

C.S.

Before: Justice Robert S. Gee

Heard on: February 20, 2019

Reasons for Judgment released on: April 29, 2019

Counsel:

• K. Ornawka, counsel for the Crown
• I. Bingham, counsel for the accused

Judgment

Gee J.:

INTRODUCTION

[1] The accused faces six charges arising out of allegations that he sexually abused the complainant whom he babysat when she was approximately 3 to 5 years of age and he was approximately 15 or 16. The charges cover the time frame from May 28, 2006 to May 27, 2008.

[2] The complainant has alleged on three occasions over that time the accused sexually abused her. As a result the accused is charged with one count of sexual interference and one count of sexual assault in relation to each incident.

[3] Six witnesses testified at trial. Of these six witnesses, only four have any direct knowledge of the events that took place between the accused and the complainant between 2006 and 2008.

[4] The complainant and her mother testified for the Crown while the accused and his sister testified for the defence.

[5] The other two witnesses were a social worker and a police officer, both called by the defence. Neither of these witnesses had any direct evidence as to what may have occurred between the accused and the complainant so their evidence was not helpful in determining whether the Crown has proven the allegations.

[6] In this, as in all cases, the accused is presumed innocent and the Crown bears the burden of proving the accused's guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. It is a much higher standard than that of proof on a balance of probabilities which is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to absolute certainty than to a balance of probabilities.

[7] Meeting that standard is always a daunting task for the Crown. It can become even more daunting in a case such as this. The bulk of the evidence in a case like this comes from the testimony of witnesses. When witnesses testify about events that took place a significant time ago it can become problematic. Memories fade over time. The longer the time between the event and the trial, the greater the potential is for witnesses' memories to fade. This means the quality of the evidence generally deteriorates as time goes on.

[8] In this case, an added issue is that the two most important witnesses were testifying about events that not only took place a long time ago, but which also took place when they were children or adolescents.

[9] However, the burden on the Crown never changes. The Crown still has the burden of proving the accused's guilt beyond a reasonable doubt even in the face of these evidentiary challenges. It is not permissible to ease the burden on the Crown because the charges are serious or because of evidentiary challenges the case presents.

[10] With these principles in mind, the balance of these reasons will explain why I find the Crown has met its burden in this case and why as a result I am finding the accused guilty.

OVERVIEW

[11] Since the accused testified and denied the allegations, an assessment of the credibility and reliability of the witnesses in this case is in the forefront to my reasoning. The Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives a different version of events from the complainant or other witnesses. This case is R. v. W.D., [1991] 1 S.C.R. 742.

[12] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not by that fact alone, entitled to win.

[13] As well, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief to simply conclude the other side's competing version must be true or accurate.

[14] W.D. tells me to approach the case in this manner. First I should ask myself if I believe the accused. If I am convinced that his version is true and accurate and I believe him, then he is entitled to an acquittal.

[15] The second part of the W.D framework comes into play if I conclude I do not believe the accused. If I do not believe him, in order to remain focussed on the Crown's burden, I should ask if I am still left in a reasonable doubt by his evidence. At this stage I have to ask if there is a basis to reject the accused's evidence outright. If I find that even though I do not believe the evidence of the accused, I am still unable to reject it as either untruthful or unreliable, then I would have to find the evidence of the accused has still left me with some doubt. The accused is entitled to the benefit of that doubt and is again entitled to an acquittal.

[16] It is only after I have found that I do not believe the accused and his evidence does not leave me with a reasonable doubt that I should move on to the third part of the W.D framework.

[17] This part of the framework reminds me that even if I have not believed the accused's evidence and have in fact rejected it that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I have to be convinced of the accused's guilt beyond a reasonable doubt based on the evidence I do accept.

[18] The complainant in this matter testified about three incidents that took place. The first happened while she, the accused and her brother were in the accused's bedroom watching television. She was initially on the floor with her brother eating cereal when the accused asked her to come onto to the bed with him. She did and laid beside him. He then reached and put his hand down her pants and rubbed her vagina over her underwear.

[19] The second incident she alleges took place in a bathroom. She was in the bathroom when the accused came in and put his penis in her mouth. The final incident again took place in a bedroom. She recalls lying on the bed with her legs hanging over the side. The accused took off her jeans, put them down and then unzipped and removed his. She thinks he then went to a dresser and may have grabbed some lotion. He then came back over, removed her underwear and had intercourse with her.

[20] In relation to the evidence of the accused I found it not to be believable nor did it leave me with a reasonable doubt. In brief I came to this conclusion as a result of some problematic issues with his evidence and because it conflicted with other evidence I did accept, that being the evidence of the complainant and her mother. Some may think that latter statement conflicts with the WD framework and the admonition that a trial like this is not a credibility contest. However that is not the case. The rejection of the evidence of an accused, based on a reasoned acceptance of conflicting evidence, which can be the evidence of a complainant, is legally permissible. This was clearly articulated by the Court of Appeal in R. v. J.J.R.D., [2006] O.J. No. 4749.

ANALYSIS

[21] When giving testimony, especially in cross examination, the accused's evidence was vague and often qualified. He would frequently say he did not remember, or his answers were peppered with qualifiers like "I guess" or "I think" or "basically" or "probably." This is problematic as it leaves me in a position where I have difficulty discerning between what was a guess or an assumption on his part as opposed to things he actually recalled.

[22] Furthermore there were times when his evidence was internally inconsistent. On the issue of his role as the complainant's babysitter at the time, his evidence frequently shifted. At the start of trial there was an admission that he had been the complainant's babysitter during this time period. During his testimony though, he tried to if not resile from such an admission, at least significantly downplay the implications of it. He testified he was not really her babysitter. When the complainant came over he had very little if anything to do with her and her brother. He stated his sisters were the ones who actually did what could be described as the babysitting and he spent all his time alone in his bedroom. At best he said since he was the oldest at the time he was labelled the babysitter but the reality was it was really the responsibility of his sisters.

[23] Another problematic aspect of his testimony was he stated that on the numerous occasions when the complainant came over he was never alone with her and he was absolutely certain she and her brother were always in his sister's room. This is problematic for a number of reasons. First it is self-serving. Second it is inconsistent with the tenor of the rest of his evidence that was vague and of which he had trouble remembering, and third, it simply defies common sense. It defies common sense in that he would remember this one fact out of everything and that it is accurate. The complainant and her brother were over at the accused's house many times throughout this period. He agreed that in the summer of 2006 alone they would have been there two to three times per week. That the complainant and her brother would spend the entire time they were at the accused's house in the constant presence of his sister and in the sister's bedroom is simply not believable.

[24] A further problem with the evidence of the accused had to do with his bedroom. The accused testified he had a futon for a bed that he always kept configured like a couch and that the floor was carpeted. Details such as this from so long ago would normally not take on much significance. However, the complainant had testified that the first incident occurred in his bedroom and he had a regular double bed and wood floors. The accused's sister also testified. Her evidence was consistent with that of the complainant and inconsistent with her brother's in that the accused had a normal mattress on a frame in his room and that the floor was wood.

[25] I should also explain at this point why I do not accept the bulk of the accused's sister's evidence and why it as well did not leave me with a doubt. I got the impression from her testimony that her primary purpose when testifying was to support her brother and not to tell the truth. Her testimony was also framed in absolute terms. She was adamant that there was never an occasion when her brother had the opportunity to be alone with the complainant. She insisted that at all times the complainant and her brother were over, that they were with her. There was never a time they were not with her and with her brother. She stated on more than one occasion she had an independent recollection of every day the complainant and her brother were over. She was challenged on this assertion by being asked what occurred on a specific day in August 2006. She answered by saying they stayed over, she took them outside, they played games and she cooked them supper. Her answer was qualified though by using phrases such as "probably" and "I don't know."

[26] It was only when pointed out to her that the use of these such qualifiers implied she didn't have an independent recollection of that day did she admit that was the case. It was because of this type of testimony from her that I was left with the impression she was more interested in saying whatever she thought would help her brother rather than admit what was obviously the truth.

[27] The one part of her testimony though that I do believe she gave truthful evidence of was in relation to the bed and floor covering in her brother's bedroom. As noted she testified, like the complainant, that the floor was wood and he had a regular bed with a frame, not a futon. I believe these were truthful answers by her and she gave them because she did not realize the significance of them to the case given she had not heard the answers given earlier in the trial by the complainant or her brother to the same questions.

[28] As noted earlier, it was for these reasons I do not believe the accused and am not left with a doubt by his evidence, but it is also because his evidence conflicts with other evidence I do accept, that being the evidence of the complainant and her mother.

[29] The complainant would have been 4 or 5 years old when these incidents occurred and was 15 years old when she testified about them. Notwithstanding she was very young when the incidents occurred and was still an adolescent when testifying, I found her evidence to be very detailed, straightforward and compelling. In listening to her testimony I did not detect any areas or attempts where I thought she was being deceptive, she responded I found to all questions put to her directly and her allegations at their core withstood cross examination.

[30] The details she gave surrounding these incidents was compelling, especially given her age at the time of the incidents. For instance, she stated in relation to the first incident she recalled sitting on the floor with her brother watching television in the accused's bedroom. She also recalled that she was eating cereal, Froot Loops to be exact before the accused called her up onto the bed. As noted earlier, she also recalled the type of bed the accused had and that the floor in the bedroom was wood. During the second incident she recalled the accused's penis was not hard but not quite soft either and during the final incident she recalled how she was lying on the bed, that the accused took off her jeans and put them beside her and that there was a bottle of lotion on a dresser that the accused went over toward. She was not certain if he used it or not but assumed he may have since he went over to where it was prior to assaulting her.

[31] The defence challenged both the credibility and reliability of the complainant's evidence. Her credibility was challenged in a number of ways. The first was that in her statement to the police she stated that in the second incident the accused put his testicles in her mouth. In court she testified he put his penis in her mouth. This is an inconsistency, according to the defence that damages her credibility. Her explanation is that at the time she gave her statement she was a young girl in grade 9 and was not familiar with the labels used to describe male anatomy. At the time it seems she thought testicles and penis described the same thing and could be used interchangeably.

[32] In the circumstances of this case and the complainant's level of maturity, this inconsistency, even if I would describe it as such, is minor and her explanation for it makes sense and I accept it, as such, I do not find this detracts from her credibility at all.

[33] Another attack on the complainant's credibility related to her demeanour when she was dropped off at the accused's house during this time. There was evidence that when she was dropped off there to be watched by the accused she would cry. Her mother said it happened every time, however the accused's sister said it happened at first but diminished over time.

[34] The defence asked me to accept the accused's sister's evidence that the complainant's crying at the drop off diminished and stopped as time went on and that this was inconsistent with what would be expected if she was being abused as alleged.

[35] My first comment in relation to this argument is that as noted earlier, I accept very little of the evidence of the accused's sister. But in any event, even if I did accept this evidence, I would give it no weight and it would have no impact on my assessment of the credibility of the complainant. This argument is premised on the assumption that there is an expected way persons who are the victims of abuse like this will behave. History has shown and courts have recognized, that relying on assumptions such as this is a dangerous and impermissible manner of reasoning. In fact, history has shown quite the opposite is true, that there is no expected or predictable manner in which a victim of abuse will behave. See: R. v. A.B.A., 2019 ONCA 123, at paragraph 5.

[36] The reliability of the complainant is attacked by the defence on the basis that her evidence was not detailed enough. The defence states the surrounding details of the three incidents is said to be lacking. The complainant was not able to recall how long the incidents lasted, how they ended, how exactly she got on the bed or into the bathroom or what she did following them. These lack of details and others it is submitted makes her evidence unreliable.

[37] In assessing the evidence of youthful witnesses, courts are required to take a common sense approach. That there may be inconsistencies in the evidence of a child or a lack of details in the evidence of a child that one might expect in an adult's evidence is not surprising. This is not to say that the evidence of a child is subjected to any lesser standard or that the burden on the Crown is relaxed when the evidence is from a child, it is just a reminder to take a common sense approach, and to assess the witness's evidence based on her mental development, understanding and ability to communicate. As well, even though when the complainant testified she was an adolescent, she was testifying about events that occurred to her when she was very young. As such, the presence of inconsistencies or the lack of detail, have to be considered in the context of her age at the time when the events took place. See: R. v. W.(R.), [1992] 2 S.C.R. 122 at paragraphs 23 to 26.

[38] Given this approach, these lack of details alluded to by the defence, again do not detract from either the credibility or reliability of the complainant's evidence. In fact the level of detail she does recall is impressive given her age at the time. Expecting a witness, whether child or adult to recall the minute details of their surroundings during incidents such as this or how long it lasted or what they did right before or after is simply unrealistic.

[39] There was also a suggestion made to the complainant that these allegations were not reliable and were the product of nightmares she had been having around the time the police became involved. The complainant testified that in the months leading up to her disclosure to her counselor and the police in February 2018, she had been having recurring nightmares about the abuse. It was these nightmares that prompted her to speak to a counselor and agree to move forward with charges.

[40] The defence suggested that her allegations were a product of these nightmares and were not factual and that she had only disclosed the incidents after the nightmares started. This suggestion is somewhat akin to an allegation of recent fabrication but in this instance goes more to the complainant's reliability as opposed to her credibility. In any event this suggestion carries no weight. It was clear from the evidence that the complainant in fact did disclose the incidents at about the time they happened and then again, several years later. She stated she told her mother that the accused had been touching her and her mother confirmed they had such a conversation.

[41] Even the accused admitted that the complainant had disclosed the allegations at about the time they occurred. He stated the complainant's family had advised his family of the allegations made by the complainant and he was asked about them and if he did it, which he denied. As such, it is clear from this that the allegations are not something that the complainant has only recently come to think happened to her as a result of the nightmares she started having.

[42] It was somewhat perplexing that suggestion was put to the complainant at all given that the defence also suggested the complainant ought not be believed as she claims to have told her mother of the third incident involving intercourse immediately after it happened, the mother inspected her daughter for signs of lubricant or lotion, as well as other injuries or blood and found none.

[43] There are two flaws with this argument that cause me to reject it. The first is that although the complainant said she told her mother of the abuse just after the third incident, there is no evidence she told her on the day it happened. In fact the complainant stated she did not remember precisely when she told her mother about it, she just knew it was close in time to when it occurred. As such, given that her mother may have not inspected her for any number of days after, the lack of blood or injuries is not surprising.

[44] The other flaw in the argument relates to the lack of injuries itself. The defence asked me to take judicial notice of the fact that if the accused who would have been 15 or 16 at the time, had intercourse with the complainant who would have been 4 or 5, then there would have been injuries observable to her mother up to and including bleeding.

[45] Judicial notice is the acceptance by the court as true of a fact or state of affairs without the requirement of proof. These are reserved for facts which are either so notorious as to not be the subject of dispute among reasonable persons, or capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy which may be noticed by the court without proof of them by any party. See: The Law of Evidence, Paciocco and Stuesser, Seventh Edition, pages 506-507.

[46] The fact the defence wishes me to take notice of, that the complainant would necessarily have suffered injuries in a sexual assault as she describes, is not a fact of which I can take judicial notice. The type and level of injuries a person would suffer, if any, in this type of situation is unclear. It is not a fact so notorious as to not be the subject of dispute among reasonable persons. It has often been said in sexual assault cases that the lack of injuries is not proof an assault did not take place. Whether that same notion applies in this case is not so clear as to be able to dispense with evidence on the point.

CONCLUSION

[47] As noted earlier, I accept the evidence of the complainant. Further it is for these reasons that the challenges to both the credibility and reliability of the complainant raised by the defence have not caused me to reject her evidence. Even after a careful consideration of all the issues raised by the defence, I still believe the complainant.

[48] It is based on the entirety of these reasons that I have found that I reject the evidence of the accused and believe the evidence of the complainant beyond a reasonable doubt. As such, findings of guilt will be made on all charges. I invite the Crown to suggest which charges it wishes convictions registered and which it requests to be stayed to avoid a multiplicity of convictions for the same acts.

Signed: Justice Robert S. Gee