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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: May 21, 2019

Court File No.: Toronto 18 – 45000473

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.P.

Before: Justice Paul H. Reinhardt

Heard on: 25, 26 February and 9 May 2019

Reasons for Judgment released on: 21 May 2019

Counsel:

• Stephanie Abrahams and Oslyn Braithwaite for the Crown
• Tony Paas for the accused

REINHARDT J.:

Charges and Procedural History

[1] J.P. is charged that he did, between 1 February 2017 and 3 February 2018, at the City of Toronto, in the Toronto Region:

(1) Commit a sexual assault on J.S., contrary to Section 271 of the Criminal Code of Canada; and further,

[2] The Crown withdrew a second count, alleging an offence contrary to Section 151 of the Code, during the same time period, on 25 February 2019.

[3] The Crown elected to proceed summarily on Count 1, on 5 June 2018.

[4] At the outset, on consent, I made three orders:

(a) Pursuant to section 486.4(2) of the Criminal Code, a ban on publication of any information that would tend to identify the complainant;

(b) Pursuant to section 486.2(1) of the Criminal Code, the two witnesses under the age of 18 years, J.S. and Je.S. be permitted to testify outside the courtroom;

(c) Pursuant to section 486.1(1) of the Criminal Code that a support person be permitted to be present and close to the witness J.S. while the witness testifies.

[5] In making these orders, I was satisfied that the criteria for making the orders, under section 486.4(2), 486.2(1) and 486.1(1), respectively, of the Criminal Code of Canada had been met.

[6] In this proceeding I heard evidence from:

(1) J.S., the complainant;

(2) Je.S.; and

(3) J.P., the accused.

Exhibits

[7] As part of the evidence, the following Exhibits were filed:

(1) DVD Statement of the victim J.S., made to Sergeant Bond on 3 February 2018, at 31 Division, pursuant to section 715.1 of the Criminal Code;

(2) Transcription of the DVD Statement of the victim, J.S., made to Sergeant Bond on 3 February 2018, at 31 Division;

(3) DVD Statement of a witness under 18, Je.S., made to Sergeant Bond on 3 February 2018, at 31 Division, pursuant to section 715.1 of the Criminal Code;

(4) Transcription of the DVD Statement of a witness under 18, Je.S., made to Sergeant Bond on 3 February 2018, at 31 Division;

[8] For the purposes of this trial, J.P. admitted his identity and the jurisdiction of this court over the matter and the offence.

[9] I have reviewed the testimony and exhibit evidence in this trial and concluded that the Crown has proven the allegation before this court of sexual assault to the Criminal standard, that is, beyond a reasonable doubt. Let me explain how I have reached this conclusion.

SUMMARY OF THE PROCEEDINGS AND EVIDENCE

[10] The accused is charged on a two count information alleging an offence of sexual assault over a period of just over one year, from 1 February 2017 to 3 February 2018.

[11] The offence is alleged to have occurred while the alleged victim and his older stepbrother, the accused, J.P., were living under one roof in their father's home in Toronto.

[12] There were two Crown witnesses called at trial, the complainant, J.S. and his younger sister, Je.S., both of whom are under 18, and subject to the provisions of the Criminal Code of Canada which are intended to provide them with testimonial aids, including the tendering of previously recorded video statements and sequestering.

[13] The complainant, J.S., testified that the accused, his step brother, J.P., would not stop bothering and pestering him, in a sexual manner.

[14] J.S. also told the police in his 715.1 video statement that the accused kept trying to befriend and influence his younger sister, Je.S., which he found troubling.

[15] He characterized the accused's behaviour as a continuing and escalating effort to flirt with him, take his picture and make unwanted sexual advances and caresses, including rubbing, kissing and hugging, which eventually progressed to grabbing and sexual touching of his privates.

[16] The complainant testified that this importuning went on regularly, and became unbearable.

[17] The complainant testified that when he concluded that despite his continual efforts, he could not stop the accused from making his sexual advances, he finally had no alternative but to make a complaint to the police.

[18] The Crown attorney, in her closing submissions, summarized four distinct ongoing events in the on-going harassment of J.S. by the accused:

(1) Summer of 2017 – Escalating sexual importuning of J.S. by the accused, culminating in the "Cabron" shouting match and fight, between J.S. & J.P.;

(2) Christmas Week 2017 – J.S. awakes in his bed with J.P. on top of him, trying to put his finger in his rectum;

(3) 29, 30 January 2018 – J.S. awakes in bed to find J.P. touching his penis, and screams;

(4) A day later 2018 – J.S., his sister Je.S. & J.P. on J.S.'s bed, J.P. begins rubbing J.S.'s thigh.

J.S.

[19] The complainant, J.S. was born in Peru on [...] 2001 and came to Canada at the age of 15 in approximately September of 2015, with his sister, Je.S., and his mother.

[20] On [...] 2017 he turned sixteen.

[21] He testified that when they arrived in Canada the three of them moved into [… Road] in Toronto, a residence owned by their stepfather, with three bedrooms.

[22] When they first arrived he and his sister each had their own bedroom.

J.S.'s 715.1 Video Statement

[23] In his Section 715.1 Video Statement, given to the police on 3 February 2018, he testified that the year to a year-and-one half, before, in the spring of 2016, his new life in Canada changed, when his stepfather's older son, from a previous relationship, J.P., moved in with them, and J.P. was given his bedroom.

[24] He testified in the 715.1 video statement that the sleeping arrangements changed because, according to J.S., J.P. was given J.S.'s room, and J.S. and his sister shared a bedroom, for some time, until his stepfather built him a new, private, bedroom.

[25] J.S. testified that his stepbrother would come into their shared bedroom and bother him and his sister.

[26] J.S. testified that for this reason, his stepfather built J.S. his own bedroom, approximately four months before he gave his 715.1 statement to the police.

[27] J.S. testified that approximately a year to a year-and-a-half before he gave his statement to the police, his stepbrother began to periodically hug him and attempt to kiss him on the neck.

[28] J.S. testified that his stepbrother also rubbed his leg and tried to put his hand in J.S.'s pants.

[29] He testified that in his 715.1 statement that his stepbrother succeeded on more than one occasion in going into his pants and touching his penis.

[30] J.S. testified that his stepbrother would usually do this in the evening, when he and his sister were getting ready to go to bed, and he was in his bed clothes.

[31] J.S. testified that his stepbrother sometimes, would come up to him, turn around, and rub his bum on J.S.'s front torso area, while both were fully clothed.

[32] J.S. testified that initially his stepbrother would not do this very often, and he could just get away from his stepbrother's seduction attempts by saying something or getting up and moving out of the room.

[33] J.S. testified that he didn't want any problems, so he would just try to avoid his stepbrother, or tell him to go away.

[34] J.S. testified that sometimes, when his stepbrother came in, he would ask his sister to help him get J.P. to stop, because his sister and J.P. were on more friendly terms.

[35] J.S. testified that initially, when he and his sister asked J.P. to leave, he did, in fact, leave, and he stopped coming into their bedroom for a period of time, approximately a month.

The "Cabron" Fight

[36] J.S. testified that, after a lapse of time, however, his stepbrother again started to come into their bedroom, and in the summer of 2017, he and his stepbrother ended up having a fight (The "Cabron" Fight).

[37] J.S. testified that, one evening, in approximately, the summer of 2017, his stepbrother came in and tried to seduce him again.

[38] J.S. testified that his stepbrother started rubbing him, despite J.S. telling him to go away.

[39] J.S. testified that he pushed his stepbrother away, and, in response, his stepbrother became more aggressive, and pushed back.

[40] J.S. testified that they began to have a physical fight, in the presence of his younger sister, Je.S.

[41] In cross-examination, J.S. confirmed that he was very upset, and during the fight, he called his stepbrother a "Cabron", in Spanish, which is a slang epithet that could be translated as the English word "faggot" or homosexual.

[42] J.S. testified that, as a result of this fight, he told both his mother and his stepfather and there was a family meeting, among J.S.'s parents, J.S., Je.S. and J.P., at the house.

[43] J.S. testified that at the family meeting, the two parents asked J.P. if he had tried to abuse J.S., and J.P. denied the allegation, at which point, J.S. punched J.P.

[44] J.S. testified that J.P. next called his mother, and after she arrived, J.P. and J.S. apologized to each other, promised not to fight, and J.P. promised not to touch him.

[45] J.S. testified that, as a result, his stepfather decided to build a separate bedroom for J.S., with a lock on the door, in an effort to give him a private space.

[46] J.S. testified that his father built the new bedroom, with a lock, but that this did not deter his stepbrother.

[47] J.S. testified that the new bedroom door and lock were not very strong, and, in addition, he sometimes forgot to lock the door.

[48] J.S. testified that again, after a lapse of some time, the accused began to sneak into his bedroom, and take pictures of him while he was sleeping.

[49] J.S. also testified that on two occasions, he woke up to find his stepbrother in his bed, groping him under his clothing.

Christmas Week 2017

[50] J.S. testified that near the end of December, he had gone to his bedroom at about 8:00 P.M.

[51] J.S. testified that he had fallen asleep at about 10:00 P.M. in his new bedroom, and he woke up to find the accused lying on top of him, with his hands in J.S.'s pants, touching his private parts.

[52] J.S. testified that, when he woke up, his stepbrother was straddling him, and rubbing his chest.

[53] J.S. testified that his stepbrother, on this occasion, tried to put his finger inside his rectum.

29, 30 January 2018

[54] J.S. testified that this happened again, at the end of January, on a Monday or a Tuesday, he again woke up in bed, to find his stepbrother touching his privates, in a sexual way.

[55] J.S. testified that, again, he was sleeping, and woke up to find the accused touching his privates.

[56] J.S. testified that he wanted to hit the accused, but stopped himself, and told the accused to leave.

[57] J.S. testified that despite three requests that the accused leave, the accused refused to do so.

[58] J.S. testified that, as a result he screamed, and his sister came into the room.

[59] J.S. testified that his sister then also asked the accused to leave, and he did so.

[60] J.S. testified that, as a result of his sister's request, the accused did leave the bedroom.

A Day or Two Later 2018

[61] J.S. testified that, on the next evening, or the day after, he again had to fend off the accused.

[62] J.S. testified that his stepbrother came into his room, on the pretext of playing with his sister.

[63] J.S. testified that his stepbrother stayed in his room, watching videos on his stepbrother's computer.

[64] J.S. testified that, he got bored, and lay down on his bed, and after a while, the accused began rubbing J.S.'s leg, under the blanket.

[65] J.S. testified that he again told him to stop and leave the room, but he refused to do so.

[66] J.S. testified that, as a result, he got out of bed, and left the room.

[67] In cross-examination, he agreed with defence counsel's assertion that he was upset when he discovered that his step-brother had posted pictures of him on Snapchat.

[68] He agreed that he was bothered because his friends assumed he was gay and having a relationship with his step-brother, because of the pictures that were posted.

[69] However, he said he was most bothered by waking up and finding his stepbrother in his bed fondling him.

[70] He testified that his stepbrother's behaviour was so bothersome, and persistent, that he decided he had to make a complaint to the Toronto Police.

The Complainant's Testimony in Court, During The Trial

[71] At trial, the complainant dramatically changed the time frame of his allegations.

[72] At trial, in chief, J.S. testified as follows, before viewing his 715.1 Statement:

Q. Okay, How old were you when J.P. started touching you, or when did he touch you?

A. Sixteen.

Q. Do you remember what month the touching started? If you don't it's fine. If you don't remember the month, maybe you could remember maybe you could remember the season, perhaps.

A. I don't recall.

[73] After viewing his 715.1 Statement, he adopted the contents of his statement, and when the Crown asked him if he agreed with his 715.1 Statement in which he told Detective Constable Michelle Bond that the touching had begun a year-and-one-half before he gave his 715.1 Statement, he answered as follows:

Q. So you stated a few times during your statement that the touching that you described from J.P. started a year and a half ago. So, that was a year and a half before giving your statement.

A. From the time I went to the police a year and a half earlier – one and a half earlier.

Q. Okay. So. That would bring us to approximately August 2016. So, if you gave your statement February 2018 a year and a half prior to that would've been August 2016, okay.

A. Mm-hmm.

Q. Okay. And then at the end of the video statement when the officer was summarizing what you had told her you had agreed that it start – that the touching had started one year prior to giving the statement, so that would bring us to February 2017. Okay, so I just want to clarify with you, was it a year and a half prior to giving the statement that J.P. started touching you inappropriately, or was it one year prior to giving the statement?

A. A year and a half.

Q. So, it started approximately August, 2016, is that correct?

A. I am not sure about the actual date, but I would say it would be about a year and a half.

Q. And do you know what month?

A. Month, no, I don't recall.

Q. Would it be – do you know what season – or what season it would've been in?

A. Summer.

Q. Summer. So, a year and a half prior to giving the statement it was approximately – or it was August 2016. Do you know if it was the beginning of August, or the middle of August, or the end of August?

A. I don't recall.

Q. Do you remember if it was before you started school that year?

A. Yes, it was.

Q. And what month do you start school?

A. What month? What do you mean?

Q. What – which month do you start school?

A. In September, or – September.

Q. So it would've been before September.

A. Yes.

Q. Okay. And so, you told us earlier that your birthday is [...], 2001. Is that correct?

A. Yes.

Q. So, in the summer 2016 you would've been 15 years old, is that correct?

A. Yes.

Q. Okay, so, - okay, so when the touching started you would've been 15 years old.

A. Yes – yes – yes.

[74] In cross-examination, defence counsel asked J.S. if he was mistaken about his dates.

[75] To clarify this point, counsel asked if the dates of his stepbrother J.P.'s arrival at the family residence at [… Road] in Toronto was approximately a year after he and his sister began residing there.

[76] J.S. now, at this stage of giving evidence, testified that his stepbrother moved into the family residence at [… Road] before Christmas of 2015, just three months after he had arrived in Canada, in September of 2015.

Je.S.

The 715.1 Statement

[77] Je.S. testified in her 715.1 Statement that over a period of time, her half-brother, J.P., would come into the bedroom she shared with her brother and start touching her brother.

[78] Je.S. testified that when the accused first moved into the home, and she and her brother shared a bedroom, her stepbrother would come into their room and touch her brother J.S.'s arms, kiss him on the neck and try to seduce him, as if just pretending.

[79] Je.S. testified that her stepbrother would call her brother "Daddy" and say "Can I have sex with you".

[80] Je.S. testified that her stepbrother would sometimes, after doing these things, start laughing and initially she and her brother thought he was joking, and take it as such.

[81] Je.S. testified, however, that even when her brother told the accused to stop, this behaviour did not stop.

[82] Je.S. testified that her stepbrother persisted, and would do other things like taking her brother's picture while he was sleeping, and posting it on Snapchat.

[83] Je.S. testified, as an example that, while her brother was sleeping, her step-brother would "pose" pictures with his hand around her brother's neck.

[84] Je.S. testified that the most recent incident she recalled was just a few weeks before she gave her statement to the police.

[85] Je.S. testified that she and her brother were in her brother's bedroom, listening to music, because they were without Wi-Fi.

[86] Je.S. testified that her stepbrother came into her brother's room and touched him again, caressing his leg, and her brother got really mad.

J.P.

[87] J.P. testified on his own behalf.

[88] J.P. testified that he is 20 years-old, having been born on [...], 1999.

[89] He testified that he came to Canada in 2017, and initially lived with his natural mother.

[90] He testified that his father is M.G., and confirmed that he is the step-brother of the two Crown witnesses, J.S. and Je.S.

[91] He testified that because of difficulties with his mother he moved in with his father and stepmother, and step-siblings in 2016.

[92] During the time he was living with his father, he was seventeen, and turned eighteen, on [...], 2017.

[93] When he moved in with his father, he was a year and one-half older than his step-brother, J.S. and during the time period of the allegations, was eighteen.

[94] He testified that he is in school, and works at Canada's Wonderland on weekends, all year round.

[95] He testified that when he moved back in with his father, he moved in to J.S.'s room, and J.S. and Je.S. shared the other bedroom.

[96] He testified that he and J.S. were not close, but saw each other regularly in the course of living together for the period of time in question.

[97] He testified that on weekends, his older brother, M. would also usually stay over, and sleep in the living room.

[98] He testified that he had a good relationship with Je.S.

[99] During his examination in chief and cross-examination he denied all of the allegations against him.

[100] He testified that during the one and one-half year period he lived in his father's house he had never tried to touch J.S. in his private parts.

[101] He testified that he had never asked J.S. to have sex.

[102] He testified that he had never gone into J.S.'s bedroom, or climbed into J.S.'s bed while J.S. was sleeping, and fondled his privates, as J.S. alleged.

[103] He acknowledged that he had taken "selfies" and pictures of and with J.S. and posted them on Snapchat, but denied posting a picture showing him kissing J.S.'s neck while J.S. was sleeping.

[104] He also denied trying to caress J.S.'s leg and privates under the bed blanket just before J.S. made his complaint to the police.

[105] He acknowledge he had had a pushing match with J.S. in the bedroom J.S. shared with his sister, Je.S., in the summer of 2017.

[106] He testified that in the late summer of 2017 a fight started when J.S. called him a "Cabron" or faggot, which is very derogatory term, in Spanish, and he began to fight with J.S.

[107] He denied that the fight occurred because he had started rubbing up against J.S. or touching him.

ISSUES IN DISPUTE

Crown

[108] The Crown submitted that the evidence in this trial establishes beyond a reasonable doubt that J.P. committed the offence with which he is charged.

Defence

[109] The defence submits, with respect to the details of the Crown's submissions, that the Crown evidence is not credible or reliable, for the following reasons:

(1) There was no sexual touching;

(2) The fighting in the summer of 2017 and the continuing arguments between J.S. and the accused were due to J.S. initially calling the accused a "Cabro", the Spanish word for "faggot", and J.S.'s anger and irritation over the accused continually taking his picture, without permission and posting pictures of him on Snap Chat, as well as being obnoxious and noisy;

LEGAL FRAMEWORK

[110] The Criminal Code of Canada provides:

Assault

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(c) fraud;

Accused's belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

Sexual assault

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25; 2015, c. 23, s. 14.

Corroboration not required

274 If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

R.S., 1985, c. C-46, s. 274; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12; 2014, c. 25, s. 16.

Rules respecting recent complaint abrogated

275 The rules relating to evidence of recent complaint are hereby abrogated with respect to offences under sections 151, 152, 153, 153.1, 155 and 159, subsections 160(2) and (3) and sections 170, 171, 172, 173, 271, 272 and 273.

R.S., 1985, c. C-46, s. 275; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12

Video-recorded Evidence

Evidence of victim or witness under 18

715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Order prohibiting use

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

R.S., 1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 2005, c. 32, s. 23.

Case Law

How To Assess Child Witnesses with respect to Time & Credibility

[111] In R. v. B. (G.), [1990] S.C.J. No. 58, Justice Bertha Wilson addresses two difficult assessments with respect to the testimony of child witnesses: time and credibility.

[112] At paragraph 55 and 56:

(b) Standard of credibility

55 The remaining two grounds of appeal are directed at the concurring reasons of Wakeling J.A., in which he discusses the use of expert testimony in cases of sexual assault involving children and the approach that should be taken when assessing the credibility of child witnesses. Given that his comments in this regard are obiter dicta, Wakeling J.A. having firmly stated that they were not to be viewed as affecting the main judgment, with which he concurred, it is not strictly necessary for this court to deal with them. However, in light of the importance of the testimony of the complainant in this case, as well as the testimony of the children in the related appeals, I think this court should address them, albeit briefly.

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

[113] In the Supreme Court of Canada, in R. v. W. (R.) [R.W.], [1992] 2 S.C.R. 122, Justice Beverley McLachlin, reviews R. v. B. (G.), and summarizes the evolving understanding now found in our case law regarding the manner in which triers of fact should assess the testimony of children, starting at paragraph 24, 25 & 26:

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

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

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

26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.…

Reasonable Doubt

[114] In a recent article on the topic of reasonable doubt, entitled "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (Canadian Criminal Law Review; 22 Can. Crim. L. Rev. 31), published in February 2017, Court of Appeal Justice David Paciocco, formally a trial judge in the Ontario Court of Justice, provides a detailed discussion of how trial judges should approach credibility.

[115] In a useful portion of his paper, that is applicable whether or not the impugned testimony is given in the R. v. W. (D.) context, Justice Paciocco discusses "Evidentiary Content and Credibility" in part VI of the paper entitled "Credibility Assessment: 'Sources' and 'Signs'". Justice Paciocco states at page 25:

Naturally, the most dependable way to evaluate credibility is to pay heed to the specific testimony offered, rather than the source or manner of presentation. There is no correct way to organize this evaluation, but I would commend five, non-exclusive and sometimes overlapping factors for disciplined consideration, namely: (a) the plausibility of the evidence, (b) independent supporting or contradicting evidence, (c) the external consistency of the evidence, (d) the internal consistency of the evidence, and (e) the "balance" of the evidence.

[116] In R. v. W. (R.) [R.W.], Justice McLachlin describes the need for trial courts to be wary of the application of what she calls "adult tests" of credibility when receiving the evidence of children. Justice McLachlin refers to a need for sensitivity to the "peculiar perspectives" of children, since children experience the world differently from adults.

[117] Specifically, the former Chief Justice cautions that important details for adults, such as time and place, may be missing from the recollections of a child, to whom these details of an event are less important.

[118] Nonetheless, former Chief Justice McLachlin cautions in her discussion at paragraph 25:

25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

[119] For the purpose of these reasons, in evaluating the testimony of the complainant, I will attempt to apply the framework set out Justice Paciocco's Canadian Criminal Law Review article, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (Canadian Criminal Law Review; 22 Can. Crim. L. Rev. 31) while considering carefully the special considerations required of trial judges when they are assessing the credibility and reliability of child witnesses.

The Criminal Standard of Reasonable Doubt When Accused Testifies (R. v. W. (D.))

[120] The Defence relies on the case law regarding the criminal law standard of "reasonable doubt" and how to assess the Crown's case when the accused chooses to testify and denies an essential element of the offence is set out the judgment of the Honourable Peter Cory, in R. v. W. (D.) [D.W.], [1991] S.C.J. No. 26, in which Justice Cory approves of the following initial charge by the trial judge, in a case of sexual assault:

C. The onus or burden of proving guilt of an accused person beyond a reasonable doubt rests upon the Crown and it never shifts ... The Crown must prove beyond a reasonable doubt that an accused person is guilty of the offence with which he is charged before he can be convicted. If you have a reasonable doubt as to whether the accused committed the offence with which he is charged, it is your duty to give that accused the benefit of the doubt and to find him not guilty on such counts. Now let me say by way of assistance that proof beyond a reasonable doubt has been achieved when you as a juror feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfies the conscience so that you as a conscientious juror feel bound or impelled to act upon it. Conversely, when the evidence you have heard leaves you as a responsible juror with some lingering or nagging doubt with respect to the proof of some essential element of the offence with which the accused is charged so that you are unable to say to yourself that the Crown has proven the guilt of the accused beyond a reasonable doubt as I have defined those words then it is your duty to acquit the accused.

D. ... if you believe the accused and he did not commit the offence or what he did lacks some essential element of the offence or if the evidence of the accused either standing alone or taken together with all of the other evidence leaves you in a state of reasonable doubt you must acquit him, but if upon consideration of all of the evidence, the arguments of counsel and my charge you are satisfied that the accused has been proven guilty beyond a reasonable doubt as I have defined those words to you, it is your duty to convict the accused.

E. ... remember always that it is the duty and responsibility of the Crown to prove beyond a reasonable doubt that it was this accused who did the offence. It is not the obligation of the defendant or the accused to prove his innocence.

[121] Justice Cory, in his reasons, finds fault with the trial judge's recharge to the jury, where the trial judge states that, at the end of the day, you must decide whether you believe the accused.

[122] Justice Cory states:

26 It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

Sexual Autonomy and the Criminal Law

[123] Although the case is principally sighted for its analysis of the issues of unwanted sexual touching and consent, R. v. Ewanchuk, [1999] S.C.J. No. 10, also addresses the underlying principle of sexual autonomy.

[124] In R. v. Ewanchuk, the complainant 17-year-old woman was applying for a job in a van. After the interview the accused invited the complainant to a trailer behind the van, to "see some of his work". During the time in the trailer, the accused became more and more intimate, touching the complainant despite her protests. The trial judge acquitted the accused based upon the defence of "implied consent".

[125] In the Alberta Court of Appeal, the court agreed. McClung, J.A., speaking for the majority, concluded that the Crown had failed to prove the accused possessed the requisite criminal intent. At the Supreme Court of Canada, the court allowed the appeal, a conviction was entered, and the matter was remanded to the trial judge for sentencing.

[126] Justice John Major, speaking for the court, stated, inter alia:

28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner": see Blackstone's Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

ANALYSIS

The Record

[127] The Crown's case relies on two child witnesses, the complainant and his sister, respectively, and the Crown tendered for each child witness contemporaneous Section 715.1 video recordings, which were adopted by each witness, and thus form part of the trial evidence in this proceeding, by virtue of the section.

The Testimony of the Crown Witnesses

[128] In both instances, the credibility of the two Crown witnesses, as to the basic narrative sequence of events was, by and large, enhanced by their Section 715.1 video recordings, which were recorded proximate to three of the four principal events in the Crown narrative.

[129] Moreover, I found the testimony of the complainant's sister assisted the Crown's case, to some extent, as it tended to corroborate the unwanted touching by the accused of her older brother, over an extended period of time.

[130] However, it continued a glaring problem with the Crown's evidence at trial, which applies to both the complainant and his sister: significant contradictions or lack of certainty regarding the particular dates of the events, in relation to the one-year-period set out in the single count before the court: between 1 February 2017 and 3 February 2018.

[131] For this court, their testimony, without further testimony or support by other witnesses as to the actual time of the alleged conduct, does not permit the Crown's to prove a potentially aggravating aspect of the case, namely, the age of the complainant at the time the assaults took place.

The Testimony of the Complainant

[132] The Crown's case in this trial relies upon the credibility and reliability of the testimony of the sixteen-year-old complainant, who would appear to have been fifteen and sixteen-years-old when the events that form the subject matter of these allegations was purported to have taken place.

[133] I have had the opportunity to observe him both while he was giving his 715.1 video Statement to the police on 3 February 2018, and now in this court, at trial, on 25 & 26 February 2019.

[134] The complainant presents in these two time periods as a bright young person and able to comprehend, receive, process and respond to the questions posed to him.

[135] At a threshold level, then, he comes across as a credible and reliable witness.

[136] However, the defence asks this court to conclude that the complainant's testimony is not credible or reliable, and cannot support a conviction, especially when it comes to the time when the alleged offences took place.

The Testimony of the Complainant's Sister

[137] With only the three witnesses being called in this case, the testimony of Je.S, sister to the complainant, and a witness, according to both the accused and the complainant of much of what they testified to, becomes crucial.

[138] Thus, the evaluation of the testimony of the complainant and his sister in this trial directly engages the analytical approach set out above in the case law, R. v. W. (R.) [R.W.], and Justice Paciocco's recent Law Review article, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" 2017, 22 Can. Crim. L. Rev. 31.

Credibility and Reliability of the Complainant as a Witness

[139] The complainant was questioned in two different forums, both of which are part of the trial evidence, his 715.1 Video Statement and at trial for two days before me.

[140] The obvious opportunity for the court to view the testimony assists, in my view in evaluating credibility and making findings of fact.

[141] I would like to summarize three factors that lead me to conclude that the complainant's testimony was, for the most part, credible and reliable.

[142] These factors are highlighted in David Paciocco's article:

The Plausibility of the Evidence

[143] In my view, the complainant's evidence was plausible. He listened carefully, answered the questions with some directness, and stayed quite calm, despite the very delicate and private nature of what he was being asked to describe.

[144] His narrative of growing agitation and anger at his stepbrother, who was not willing to stop bothering, touching and assaulting him, despite all the complainant's efforts, was understandable.

Independent Supporting Evidence

[145] The testimony of his younger sister supported his narrative, and, though sketchy, supported the basic sequence of events to which he testified.

External & Internal Consistency

[146] In my view, his testimony that his stepfather had attempted, in August of 2017, to provide him with a secure and private bedroom is internally consistent with his narrative in his own testimony of what he did to try and keep his half-brother out of his bedroom.

[147] However, it must be observed that it is also consistent with the exculpatory narrative by the accused in his evidence, in which he testified that he and the complainant were not getting along, generally, while living under the same roof.

Other Considerations in Evaluating Credibility

[148] Three factual issues that need to be addressed when considering the testimony of the complainant, when considered in this case, in my view, result in mixed results when trying to assess the credibility of the testimony of the complainant, taken as a whole.

(1) Opportunity

During the time period set out in the single allegation before this court, there was ample opportunity for the accused to have behaved in the manner described, because of the close proximity of the bedrooms, and the lack of personal privacy, generally, in the home, and this tends to corroborate the complainant's general narrative.

(2) Absence of Details

The complainant did provide details, in his narrative, however, he was unclear about the times of the alleged behaviour by the accused, and this tends to create less certainty as to his reliability.

(3) Confusion as to Dates

While testifying at trial, the complainant adopted three different dates for the commencement of his stepbrother's assaultive behaviours, and in my view, ruled out any possibility of the court making a finding of fact that they commenced prior to his sixteenth birthday.

(4) Motive to Fabricate

The accused arrived at his father's house after the complainant and his sister had been living in separate bedrooms in the house. As a result the complainant had to move out of his bedroom to make way for the accused and share a bedroom with his sister, until his stepfather built him his own bedroom, which he testified was never a secure bedroom. In my view, this was at least partially a cause of friction between the complainant and the accused. A real difficulty, perhaps a rivalry, between the complainant and the accused could be a factor that might undermine the complainant's testimony. However, it does not, in my view, negate the complainant's narrative regarding his stepbrother's assaultive behaviour.

[149] It is also clear that the general principle regarding the need for details to test reliability must be qualified when the testimony is that of a child witness.

[150] The complainant, J.S. was fifteen and sixteen when the events occurred, and sixteen when he testified. I think his evidence did provide sufficient details to identify the ongoing transaction and the principle instances summarized by the Crown in her closing, and provided a consistent and reliable view of what happened during the time period set out in the information.

R. v. W. (D.) Analysis of J.P.'s Testimony

Testimony of J.P.

[151] He testified that during the approximate one and one-half year period he lived in his father's house he had never tried to touch J.S. in his private parts.

[152] He acknowledged that he had taken "selfies" and pictures of and with J.S. and posted them on Snapchat, but denied posting a picture showing him kissing J.S.'s neck while J.S. was sleeping.

[153] He testified that in the summer of 2017 J.S. called him a "Cabron" or faggot, which is very derogatory term, in Spanish, and he began to fight with J.S. because this term, Cabron was an insult to his dignity.

Corroboration of the Accused

[154] As stated above, the intervention of the accused's father to build a separate bedroom for the complainant, if believed, can to some extent also serve to buttress the accused by providing an innocent explanation for the building of the new bedroom.

[155] The categorical denial of any sexual activity by the accused, in itself, does not raise doubt, in my view, of the complainant's overall narrative of the reason for the breakdown of their relationship, given the totality of evidence I have heard.

[156] In my view, the Crown evidence, through the complainant and his sister have established that the alleged sexual assault took place, between 1 February 2017 and 3 February 2018, to the criminal standard.

[157] The information on its face does not violate the single transaction requirement. (See R. v. Selles, [1997] O.J. No. 2502.)

[158] Furthermore, there is no requirement that the Crown particularize the allegation.

[159] However, the Crown led evidence from the complainant regarding the dates of the commencement of the assaults, and is seeking a finding from this court.

[160] On the evidence called in this proceeding, I am not satisfied that the Crown has proven to the criminal standard that the unwanted touching occurred prior to the complainant's sixteenth birthday, on [...] 2017.

[161] In the result, there will be a finding of guilt.

Released: 21 May 2019

Signed: "Justice Paul H. Reinhardt"