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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES
(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
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: December 23, 2019
Court File No.: Brampton 19-000476
Between:
Her Majesty the Queen
— AND —
J.P.
Before: Justice A. Mackay
Heard on: June 10, 11, 12, October 28, 2019
Reasons for Judgment released on: December 23, 2019
Counsel:
- A. MacArthur — counsel for the Crown
- E. Bhattacharya — counsel for the accused
Judgment
MACKAY J.:
Introduction
[1] J.P. is charged with sexually assaulting M.P., his younger sister, during the period between the 1st of January 2006 and the 31st of December 2006. In addition, during the same time frame he is charged with touching for a sexual purpose, a person under the age of 16, contrary to s. 151 of the Criminal Code and invitation to touch for a sexual purpose, contrary to s. 152 of the Code. His sister, M.P., is the complainant for each charge. During this time period, M.P. would be 6 years old and the defendant was approximately 15 years old.
[2] The goal in any trial is to search for the truth. However, the reality is that in most cases we do not learn the truth. Rather, we search for proof that can satisfy the very high standard required to convict an individual of a criminal offence, proof beyond a reasonable doubt.
[3] The main issue I must decide is the credibility and reliability of the witnesses.
[4] The test to be applied in trials in which credibility is the real issue is well known, and was set out by Justice Cory in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other case law. Accordingly, in relation to the defendant:
Firstly, If I believe his evidence, I must acquit him.
Second, even if I do not believe his evidence but I am left in reasonable doubt by it or any of the other evidence, I must acquit him.
Third, even if I am not left in doubt by his evidence, I still must consider it and all of the evidence and ask myself whether, on the basis of the evidence which I do accept, the Crown has proven guilt beyond a reasonable doubt.
Overview
[5] The following is a summary of the relevant evidence.
M.P.
[6] Dealing first with M.P.'s evidence. The complainant was 19 years old when she testified. She has two siblings, the accused, J.P. who is 9 years her senior and another brother J.A.P. who is 4 years her senior.
[7] M.P. had a normal sibling relationship but she was not that close to her brothers.
The sexual assaults occurred at their home on L. Crescent and the invitation to sexual touching occurred at their grandmother's home.
The Bedroom Incident
[8] When they lived in the L. Crescent home her brother, J.P., sexually molested her. M.P. advised that she could only remember it happening in his bedroom and in the basement. She was approximately 6 or 7 years old. The defendant was 15 or 16 years old. She recalled the colour of his room was blue and she remembered his closet was only half painted. During the sexual touching the defendant wore a blue t-shirt, sweatpants and shorts. J.P. always wore basketball shorts. M.P. had on a night top and some leggings. Her top was pink, and she thought maybe her bottoms were white.
[9] M.P. described the first sexual encounter with her brother as follows. She was in her room on her bed and J.P. asked her if she wanted to see something, so she came into his room and he closed the door. They sat on his bed. M.P. believed she sat on his left side. She could not remember the conversation. He was laying down and she scooted up to the left of his leg. At this point he pulled down his pants and showed her his penis. She recalled that the waistband was stretchy but could not recall if he wore underwear; she said he "probably" did. He moved his shorts down above his knee. M.P. had used the adjective "probably" a few times when she gave her evidence, when asked why, she said this was the way she spoke.
[10] M.P. remembers feeling confused and shocked as she had not seen a penis before. She trusted J.P. because he was her brother. He wanted her to touch it, however she could not remember the conversation. M.P. did touch his penis with her hand for about a minute or less, she was "jacking him off". It ended when they heard J.A.P's ankles clicking. She believed her brother ejaculated.
[11] After the touching, J.P. wanted her to give him a blow job. She said she felt a little off about it, so he said to her that maybe she should put her mouth around his penis, and she did. M.P. did not understand what was happening, but J.P. reassured her it was ok. She could not remember the exact words he used. She did one or two head movements up and down and then he wanted to put his penis in her vagina. She had less than an inch of J.P.'s penis in her mouth. He turned her around and put the tip in. She was on her knees and leaning forward a bit. M.P. could not remember how long that lasted but she remembers he masturbated, ejaculated and made her watch.
[12] The Crown asked her why she used the word "tip", and she replied because she believed her brother told her he was only putting the tip in her vagina.
[13] M.P. recalled the colour of her room as being pink and purple. She had a walk-in closet with a window. It was the biggest room she has ever had. She could not remember what she was doing before J.P. came to her bedroom door. His room was just 3 or 4 steps from her room. J.A.P., her other brother, stayed mostly in the basement playing video games. He suffered from anxiety and depression. J.P. usually looked after her and J.A.P. when her parents were out.
[14] M.P. could not remember how the intercourse came to an end. She could not say where the basketball shorts were or her clothing was, however she believed her pants and underwear were removed. She was "not quite sure" how they were removed. She did not know if her pants and underwear were on when they heard J.A.P. and she did not remember putting her clothes back on. M.P. believed it happened in the spring and on a weekend when her parents were out grocery shopping. She did not know why she thinks she was 6 or 7 when it happened but she felt like she was that age. She was certain it did not happen after she turned 7.
[15] A sexual encounter with J.P. occurred again about two or three more times.
[16] In cross-examination, M.P. agreed that she really did not remember what the defendant wore when he molested her in his bedroom. M.P. agreed that she never told the police that she had masturbated the defendant or "jacked him off". She was surprised she did not provide the police with these details. M.P. believed that J.P. was on his back when he masturbated and that he wore a shirt that covered his abdomen. She could not say for sure where the semen went but believed it went on his flesh.
[17] She heard J.A.P's heels clicking after J.P. ejaculated. M.P. explained that her memory was foggy when she spoke to police. It was her belief that her memory improved since then. She could not recall what she did when she heard the footsteps of J.A.P, but she believed she opened the door and saw him in the hallway after J.P. had molested her. M.P. had no memory of what she said to J.A.P. or whether he said anything to her. M.P. agreed that she never told police that J.A.P. was in the hallway, rather she told police she did not remember what happened after.
[18] She could not remember if there was a lock on J.P.'s door. There was no lock on the basement door.
[19] M.P. said it always happened when her parents were at work or they went out grocery shopping. It should be noted up to this point that she only described one incident involving sexual activity.
Basement Incident
[20] The next incident occurred in the basement. She was not sure how long after the first incident it happened, but believed it was months later. The basement was not finished. It had a laundry room, TV area, two couches and in another area, there was a computer and a dresser.
[21] In the basement the defendant wanted her to kiss him. M.P recalls there being pieces of wood stacked up. It was in the area of where her mother kept dirty laundry. They were laying on the wood. She took what her brother meant by a kiss as a peck. She found it a bit odd, but she trusted him, and she said ok. She gave him two pecks, but she could not remember what happened next.
[22] J.A.P. always spent time in the basement playing video games when she was 6. He would come up for food and go back down to the basement. She was not sure where J.A.P. was when the kiss occurred in the basement.
[23] M.P. had no memory of the time of day or the season when the kissing incident occurred. She could not remember what J.P. was wearing. He did not expose himself to her and he was fully clothed. She had no recollection of any conversation between her and the defendant at this time. She could not say who was home, but she could hear muffled sounds. M.P. could not say if the door was closed. She could not recall how she got to the position of lying beside J.P. M.P. could not recall if she touched the defendant. She could not remember if he asked her to kiss him a second time or whether she did it on her own. M.P. did remember that his breath was a bit smelly. When asked why she would kiss him again, she said because he asked me to. This was inconsistent from her answer minutes before. She recalled that she grabbed his face when she kissed him. In M.P.'s statement to police she did not remember if she grabbed his face. When she spoke to police, she said she kissed him two or three times. She explained at the time she spoke to police she was just estimating. She could not say how the kissing ended and had no memory of J.P. touching her.
[24] M.P. agreed that her memory comes and goes and that it sometimes does not make sense. Sometimes a memory will pop in her head and then it goes. She agreed that she would block things from her memory and that she would have a 'disfigured memory' of what took place.
Christmas Incident
[25] The next incident occurred at her grandmother's house in Brampton. She could not say how many months passed between this one and the one in the basement. She believed it was Christmas time. She remembered Christmas lights and that her grandmother had a white imported couch.
[26] Her brother, J.A.P., had a 'DS' or Nintendo console. It came with a pen and you could draw and send messages to another person with a similar console. There were two DS consoles in the house, one was hers and one was J.A.P's. They were often left lying around in the living room or her room.
[27] M.P. was on her DS and J.P. also had one in his hand. J.P. was in the living room with her at the time. She remembered receiving a message with the word "SEX" written in large print. The word took up the whole space in the message box. There may have been other words written but she could only remember the one word. M.P. did not reply to the message. She had an idea of what "sex" meant but was not completely sure. M.P. could not say how she interpreted the message. She knew it came from J.P. although it had J.A.P.'s name on it. Nothing else significant happened that day.
[28] M.P. could not remember anything else about the Christmas incident, but she believed the message "sex" was her brother propositioning her to have sex. She agreed that nothing was mentioned about any particular kind of sexual activity. When the message was sent, all of her family was relaxing in the same room after Christmas dinner.
In her statement to police she advised that she thought J.P. had asked her to perform oral sex on the DS. She did not have that memory when asked and advised that her memory comes and goes.
[29] M.P. was asked if any other incidents happened between her and the defendant and she responded "no". She agreed that she had no memory of any other incidents other than the three she spoke about.
[30] She did not tell anyone, and she did not recall her brother threatening her not to tell anyone. M.P.'s relationship with J.P. was normal after the incidents.
Relationship with her Brother
[31] In cross-examination, M.P. testified to the following. She remembered doing lots of activities with her brothers, which included going to the park, playing basketball and getting help with her homework. M.P. also recalled that J.P. had stood up for her once in the past when a boy in the neighborhood upset her.
[32] M.P. did recall approximately two years ago that she asked J.P. to pick her up as she was going crazy living with her grandparents. He also took her to get her G1 license. When they were in the car, she told him about a family friend of J.P.'s named Ryan who had done something to her. She disagreed that J.P. had told her in response that she should go to the police.
[33] Several family photos were shown to M.P. In one of the photos she was seated on her brother's lap. In all the pictures she appeared to be happy. She agreed that the way she appeared in the pictures is the way she always interacted with her brother, they were close and had fun at family events. Family photos of the defendant's wedding were also introduced.
[34] The fact that M.P. looked happy in her family pictures or continued to have a relationship with her brother does not support that a sexual assault did not take place. It is very common for children who have been sexually assaulted to continue in their relationship with the perpetrator as if nothing had happened. Generally, they have little choice to do otherwise. The defendant as well agreed that the pictures did not reveal that there was some dysfunction in the family or that not everyone got along.
Disclosure to Police
[35] M.P. disclosed the incidents to the police because she could not deal with the memories anymore. There had been a period where she was able to repress the memories of the molestation. In February 2018 she told her mother. Her mother had advised her to go to the police. M.P. did not want to make it a legal issue and take it to the courts. She did not want to lose relationships with anyone. Since disclosing the incidents to police, M.P. has lost her relationship with J.P., her grandparents, her niece and nephew. She still has not met her nephew. M.P. became upset when she spoke about what had transpired and advised she was upset because the defendant is her brother.
The Niagara Statement
Towards the end of M.P.'s cross-examination, defence began to ask her about a statement she made to the Niagara police in March of 2018 prior to giving her videotaped statement to Brampton police. She recalled vaguely speaking to Niagara police. The Crown had not shown her the statement prior to testifying. At my request, the Niagara occurrence report was shown to her. At a later date, after M.P. had completed her evidence, the Crown and defence submitted an Agreed Statement of Fact confirming that the contents of the Niagara statement, found in Cst. Anderson's notes, were an accurate account of what M.P. advised police.
[36] Mr. Bhattacharya did not seek to call Officer Anderson as a witness, nor did the Crown, Ms. MacArthur. There were significant inconsistencies in the version contained in Officer Anderson's notes with what M.P. had said in her testimony at trial and with what she had told Brampton police.
[37] Officer Anderson advised that on meeting M.P. and her mother he made notes in his issued duty notebook that summarized the events that were provided to him by M.P. He stated that "M.P. did, in her own words provide me the following details". From there, the officer set out the allegations she made.
[38] Officer Anderson did not record verbatim what M.P. said, nor did he have the complainant sign his notebook. However, the Crown and defence jointly submitted that the officer would have correctly attempted to record the version she gave. In addition, the Crown submitted that M.P. 'vouched' for the statement, although she only vaguely recalled some of the details contained in it.
[39] Officer Anderson's notes are not a previous statement within the meaning of s. 10(1) of the Canada Evidence Act (CEA). However, given the concession of the Crown, the notes represent a previous oral statement within the meaning of s. 11 of the CEA and the defence has complied with that section.
[40] When the version contained in Cst. Anderson's notes was put to M.P. she did not adopt the statement as being truthful, but she did acknowledge that she vaguely recalled telling Cst. Anderson some of what it contained. M.P. stated, however, that she did not have a present recollection of those specific allegations having occurred and would be lying to say that they did occur.
[41] M.P. agreed that she had a recollection that the defendant would invite her into his bedroom, have her role play as his pregnant wife and make her perform oral sex on him. However, she did not have a recollection of saying it occurred 4 to 6 times over the span of a year. When pressed in cross-examination as to why she never referred to this role playing, she stated that she was not asked about it. It should be noted that just prior to questions about the Niagara statement she was asked about whether there were any other incidents than the three she described, and she answered "No".
[42] In the Niagara statement she also advised that she was forced to have intercourse with J.A.P. on three occasions; however, when asked about this she did not recall this happening. She stated that given her present recollection, the parts of the statement that she did not recall would not be true.
[43] After reading the summary prepared by Cst. Anderson she stated both in cross-examination and in re-examination that the summary was accurate.
[44] It is the complainant's position that while she recalled speaking to Cst. Anderson, her memory has since faded and she no longer has a present recollection of the events and sexual acts she spoke of at that time. Given she does not have a present memory of these events, it cannot be said that she adopted the prior statement. In the unusual circumstances of this case, I find that Officer Anderson's will-say contains a prior oral statement of M.P. The statements obviously cannot be used for their truth, however, portions of the statement to Cst. Anderson can be used to assess M.P.'s reliability and credibility.
J.P.
[45] J.P. testified to the following. He is 28 years old, has been married for over two years and has three children. He is working and attending school, studying business management.
[46] J.P. lived at 29 L. Crescent from 2004 until 2011. His sister's bedroom was right beside his room. He did not have a lock on his door. In 2006 he was 15 years old turning 16; M.P. was aged 6 turning 7. He had a close-knit family. M.P. used to follow him and his brother around to the basketball court, soccer field and to the park. They would play video games with her and read her books.
[47] J.P. advised that he at no time engaged in sexual activity with his sister. He denied ever asking his sister to kiss him in the basement and further denied sending her a message with the word "Sex" from a DS controller.
[48] In 2006 he was in grade 10. He babysat his younger siblings about once a month when his parents went to get groceries. His grandparents lived about a 15-minute drive away and they would often come to visit. During the day the home was always unlocked.
[49] The defendant did not recall his sister ever coming into his bedroom. J.P. described the basement of the family home similarly to M.P.
[50] In 2006 he was 6'4 and was approximately 300 lbs. J.P. did not have a DS controller. He did not like the way the game worked and did not like the virtual stylus; he had very large hands and fingers for this type of game. The controllers were left all over the house. He does not remember them being at his grandparent's home.
[51] Family and friends would frequently come over in 2006. Some would enter without knocking. His mother was not working in 2006 and his dad was laid off in late 2005 and was home in the first four months of 2006. During the summer of 2006 he spent a lot of time at his grandparents. He enjoyed having a break from his home which was at times chaotic. During the days he went to work with his dad. He occasionally spent time alone with his younger brother J.A.P. and M.P. He had a typical loving brother and sister relationship with M.P.. He did not have any conflicts with her. During the summer of 2005 he went to summer school. In 2007 he broke a bone in his foot, and it affected his mobility for two months.
[52] J.P. moved out of the house when he met his wife in 2016. He continued to have contact with M.P. He took her to get her driver's license. When she needed a break from living with her grandparents and their parents he came and picked her up. They used to communicate almost daily.
[53] At his wedding in August 2017 M.P. was his only 'grooms' woman' who stood with him during the ceremony.
[54] On one occasion when he was driving, and his sister was in the car she relayed something negative that a family friend had done to her. J.P.'s first question to her was why she waited so long to tell him, and he asked her what she wanted to do and whether she wanted to go to the police.
[55] On March 24, 2018 he first became aware that he was being investigated by police.
[56] In cross-examination J.P. testified to the following. He could not recall the colour of M.P.'s room or the fact that she had a walk-in closet with a window when they lived on L. Crescent. He never went in her bedroom and did not look in her room. He could not recall if her bedroom was painted when she was 8.
[57] J.P. was asked if he used to call M.P. "R" and he said he did not remember. However, he told police in his interview that he did. He agreed that he played video games with her downstairs and they would play 'Guitar hero'.
[58] J.P. was closer to his brother simply because of the age gap between him and his sister. He had more interests in common with his brother as well. He would read stories to M.P. in the living room. He agreed that J.A.P. had anxiety and depression and he was not always available to play with M.P.
[59] The defendant only hung out in his bedroom when he wanted privacy, he never asked M.P. to come to his room.
[60] J.P. remembered a time prior to being charged when M.P. gave him a big hug and told him she loved him. They did not have any arguments prior to him being charged.
[61] J.P. would wear basketball shorts and track pants when he was 15 and 16.
[62] He would not have laid on plywood in the basement because it would not be comfortable. He never asked his sister to kiss him. He agreed with the description of the home as described by his sister.
O.L.R.
[63] O.L.R. is the paternal grandmother of the defendant and M.P. She spoke very highly of J.P.
[64] She confirmed that the family would come for Christmas to her home along with her other grandchildren. She advised that the children had no opportunity to go off and be on their own at her house.
[65] O.L.R. would attend at the L. Crescent home a least once per week. Often she would enter without knocking.
Assessment of the Evidence
[66] Dealing first with M.P.'s evidence. As I assess her evidence I have instructed myself on the fact that M.P. testified about matters that happened when she was only 6 or 7, she is now aged 19. For the past two decades the courts have viewed the evidence of children with greater sensitivity. The courts have recognized that the detail of an adult's version of events may be missing from a child's recall as their world is experienced differently than an adult. Wilson J. recognized this in R. v. B(G), [1990] 2 SCR 30 at para. 48:
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.
[67] I have also instructed myself that the delayed disclosure of a sexual assault, standing alone, can never be used to draw an adverse inference about a complainant's credibility. The manner in which M.P. disclosed the allegations is not unusual. There is no inviolable rule as to how a victim of sexual assault will behave.
[68] M.P. was unable to remember specific details of the alleged sexual interactions with her brother. For example, with respect to the bedroom incident, she could not remember how her clothes came off or how they got back on. She could not recall details of any conversation during the sexual activity. She was inconsistent on details of when she was aware her younger brother was nearby. However, it was a bit unusual, given her inability with respect to these details, to remember the colour of her top and her brother's top during the bedroom incident. In addition, she could not remember with respect to the kissing incident the time of day or the season. With respect to the Christmas incident she was unclear about the words used by the defendant. These difficulties in her recollection do not cause me great concern. It must be expected that a person recalling something that occurred to them as a child would not be able to remember the finer details. I have not placed a lot of weight in assessing her credibility and reliability that she could not recall these details of the events or specific conversations.
[69] There were significant inconsistencies between M.P.'s evidence and her video statement she gave to the Brampton police. She neglected to speak about the masturbation and the ejaculation in the bedroom incident. It is not unusual in these circumstances for some individuals, in recalling a historical event, to fail to provide all of the details at once. Still, this is a significant detail.
[70] However, there are more serious issues with respect to M.P.'s recollection and lack thereof. In addition, there were further significant inconsistencies with her statement to the Niagara police and her evidence at trial. She advised that her brother had her engage in role playing involving oral sex and that this occurred approximately 4 to 6 times over the span of a year. The allegation of role playing came up only in cross-examination. When asked about her statement she advised that it occurred, but she did not have a recollection of it occurring more than one time. M.P. advised that given her present memory it would not be truthful for her to say that these incidences occurred. A further significant inconsistency was that she was forced to have intercourse with the defendant three times. It was her evidence at trial that this did not occur, rather she spoke of only one incident where there was intercourse.
[71] It is clear that M.P.'s recollection with respect to the allegations is seriously impaired. M.P. herself acknowledged this to be true and advised that her inability to recall things or to recall incidents differ dramatically and "sometimes does not make sense". She also described having a "disfigured recollection".
[72] I did not find that M.P. set out to deliberately mislead the court. It may very well be that she was sexually abused and has attempted to repress these memories. The complainant stated that she had blocked out her memories of the abuse and that sometimes parts of it would come and later more parts of it would come.
[73] It was clear that it was difficult for her to testify against her brother. M.P. became emotional when she advised that she has lost relationships as a result of coming forward to the police. M.P. still has great affection for the defendant. It was her mother who insisted that she advise police about what her brother had done. However, given the extreme variations in the accounts she has provided and her inability to recall them at different times, I have serious concerns with respect to her reliability.
[74] Turning to J.P.'s evidence. The Crown pointed out some shortfalls in his evidence. I agree with Ms. MacArthur that J.P. may not have been completely forthright with the court when he said he never went into his sister's room and could not give a description of what it looked like. Given they lived at the residence for several years and that their rooms were next to one another, his claim is unlikely. Equally less credible was his statement that his sister had never come into his bedroom. The Crown further argued that J.P.'s claim that he never kissed his sister on the lips, even in cases where it was not of a sexual nature, was not credible. I cannot say one way or another if this was a truthful answer given that the siblings were eight years apart. The fact that he denied ever using the Nintendo DS at his grandmother's house may be unlikely, given he had no or limited access to any other gaming system. On the other hand, he had very large hands and the game was small in size. It is possible that J.P. was attempting to put his evidence in the best possible light to avoid a conviction. This does not mean, however, that he committed the offences before the court. It is of course open to a trier of fact to believe some but not all of a witness's evidence.
[75] I found J.P. for the most part to be a credible and reliable witness. There was nothing in the way he testified or anything he said that caused me to disbelieve him when he stated he did not, at any time, touch his sister for a sexual purpose or invite her to touch him for a sexual purpose. Applying the W.(D.) analysis, the defendant has raised a reasonable doubt in my mind and I am unable to find beyond a reasonable doubt that he sexually assaulted M.P., touched her in a sexual manner or invited her to touch him in a sexual manner.
[76] As a result, I find the defendant not guilty of the charges before the court.
Released: December 23, 2019
Signed: Justice A. R. Mackay
Footnotes
[1] R. v. Toten, [1993] O.J. NO. 1496, paras 42, 43
[2] Canada Evidence Act R.S.C. 1985, c. C-5, s. 10.
[3] s. 11 CEA: Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before the proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
Canada Evidence Act R.S.C. 1985, c. C-5, s. 11