Court Information

Date: February 11, 2020

Information No.: 2811-998-18-Y18465-00

Ontario Court of Justice

Her Majesty the Queen

v.

M.G.

Proceedings at Reasons for Judgment

Before the Honourable Justice G.R. Wakefield

on February 11, 2020 at Oshawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Appearances

M. Gillen – Counsel for the Crown

J. Guile – Counsel for M.G.

Reasons for Judgment

WAKEFIELD, J. (Orally):

Overview of Charges

M.G. is charged with sexual assault and sexual interference of his sister in a timeframe from his twelfth birthday up until September 2018 when the complainant disclosed to her mother and then to the police. The sexual interference timeframe would be from the defendant's 14th birthday.

The Crown called the complainant, and the investigating officer. The defendant testified. All three branches of W.D. are engaged.

Legal Framework

The entirety of the case is an assessment of the testimony of the complainant, with some context from the investigating officer, and the testimony of the defendant. W.D. prohibits an analysis based on the Court preferring one witness over the other, but subsequent case law arising from R. v. JJRD, [2006] O.J. No. 4749, line of cases do permit a careful analysis of the complainant's testimony to form a basis of rejecting a defendant's denials despite there being no other basis to reject the defendant's testimony.

First Video Statement – September 27, 2018

The complainant gave two video statements to the police. In the first statement which lasted one hour and taken September 27, 2018, commenced with the officer confirming with her as to the importance of telling the truth and the complainant confirming that she already knew that she could be arrested if lying to the police. I note that compared to many other video interviews I have watched that this was a very soft caution by the officer. The complainant was thirteen and a half years old at the time of the interview.

She described wanting the sexual abuse by her brother to stop and approached her mother to access counselling. Her mother apparently refused to arrange counselling without the complainant disclosing to her mother what the issue was requiring counselling. The disclosure arose from her mother not only questioning her, but actually asking if M.G., as opposed to anyone else, had done something to her. That disclosure resulted in mother taking the complainant to the police station where the front desk referred them to Detective Briese who conducted the interview of the complainant, and apparently the mother as well as the defendant later in the evening.

Complainant's Background and Demeanor

During a conversation which appeared to try and help the complainant to be more comfortable, she described herself as in grade eight at a local Catholic elementary school and looking forward to a grade eight graduation trip to the Muskokas. She presented as socially awkward as are many young teens, but with a noticeable speech impediment which must have made socializing among her peers even more challenging and perhaps increasing her vulnerability. Her spare time is consumed with reading and watching T.V.

Timeline of Alleged Abuse

She described that the abuse started about five years earlier, but she says she isn't sure exactly when as she was so young at the time. She asserted that she was so young she didn't know it was bad or wrong. As such, she would have been approximately five and maybe in grade three, however as this was not really explored either in-chief or in-cross, it can only be an approximation.

More started happening in the three years previous to the statement, or approximately from when she was 10 years old and about grade five. No actual timeline was presented which is quite consistent with a young person describing events when much younger. The contact started with the defendant just kissing her on the lips which continued over the course of about a year. That was followed by his taking her clothes off, initially such as pulling up her top, which continued over another year, and then proceeded to his touching her breast and vagina. Then he started to his penis into her vagina starting about three years earlier according to the statement.

First Incident of Intercourse

I am unsure if she was describing the very first incident of intercourse, despite her saying it was, or if it was an example of what occurred, but she described being seated in a chair in her bedroom watching the TV in her bedroom when her brother came in. She stood up, and he pulled down her pants and while both were continuously standing with their feet on the floor, he had intercourse with her for about 10 minutes until she said "stop" and pushed him away and he returned to his bedroom. While she told him to stop several times and saying that we can't several times, she described her brother not saying anything during the time in her bedroom.

She recalls that both parents were home at the time, her mother in the kitchen and her father in the basement. She believed that this occurred four years earlier in June, a week before school finished, or around the time of her ninth birthday. Again, I note that nothing turns on the timeline differences in her statement given her age, but she connected this memory to the last week of school and not to being three weeks after her birthday. At the same time different people connect memories in different ways.

The sexual intercourse would then occur about twice a month up until roughly three weeks before the first video statement.

Second Incident of Intercourse

She described what she believes was the fifth time, or assuming twice a month, three or four months later, or September or October. There was intercourse in his bedroom during a game of cards on his bed when he started kissing her and then pushed her down, took off her clothes fast and violently and either put his penis between her legs or into her vagina and it hurt, without specifying exactly where on the body, when he kept pushing for about 15 minutes. It stopped suddenly and they just laid on the bed frozen until she got up and grabbed her clothes and went into her own bedroom. Again, she described him as saying nothing throughout the incident.

Disclosure and Medical Examination

She describes later telling her cousin, and subsequently telling the cousin's partner and one of the complainant's aunts. Apparently, her mother went to the Dollar Store to purchase a pregnancy test kit. They then went to a cousin's birthday party and at some point, the complainant was taken to the hospital for an examination prior to coming into the police station.

Emotional State and Living Arrangements

The complainant describes being afraid of her brother, especially if he went to jail. However, she confirmed the brother never threatened her if she told anyone. She does not want him living in the same home as her.

She described the events starting at one house in Whitby prior to her parents separating and after that house being sold, it continues in both the respective residences of her mother and father. She and her brother lived mostly at her mother's house. Some events she described happening at her father's house on his weekend access to the children.

Most Recent Incident

The last time in which there was intercourse was about three weeks prior to coming into the police station. I agree with the Crown submission that this incident would be fresh in her mind despite her age. It was before school started, probably August. She described being at her mother's house on the living room couch, organizing newspapers for her delivery route, while she and her brother were watching TV, sitting on opposite ends of the couch, when he started kissing her.

In the interview, the complainant demonstrated on a couch how she was positioned with her back to the arm of the couch, cross-legged gesturing that the newspapers were on the couch in front of her. The defendant is then described sitting at the other end of the couch watching TV when he climbs on top of his sister, stretching down her legs and separating them and pulling down her pants, which apparently is all occurring on top of the newspapers. He then climbs on top of her to force intercourse on her. He starts by kissing her on the cheek and taking off her clothes. She pushes him away almost to the point of him falling off the couch, but he perseveres and puts his penis into her vagina "really hard" and it hurt a lot. The intercourse is described as continuing for at least 20 minutes until they hear a car and believe it is their mother returning so the brother ran up the stairs to his room, leaving his sister to put her clothes back on and returned to folding her newspapers, which from her gestures were still in front of her on the couch.

She was never asked about what if anything happened to the newspapers underneath them from pulling down her pants and during the 20 minutes of intercourse, other than after the defendant left the couch, she returned to folding newspapers.

From her demonstration on the couch, her right cheek would be against the back of the couch. She was not asked how the defendant placed his head between her and the couch back in order to kiss her right cheek.

In this first interview, when asked how truthful she was being on a scale of one to ten, she asserted it was a ten.

Second Video Statement – March 4, 2019: Retraction

Five months later, March 4, 2019, the complainant and Detective are back in the same interview room in an interrogation which last 82 minutes regarding the complainant retraction of the allegations.

This interview also commenced with the Detective emphasizing the requirement for telling the truth by the complainant. This time the caution to tell the truth was not as soft. I inferred the officer had already been told that the complainant was retracting her allegations against her brother, which prior knowledge the Detective confirmed in her testimony in-chief.

Just as in the first interview, the still thirteen year old complainant was alone in the room with the Detective. Apparently this time, even the complainant's cell phone had been taken away from her before entering the interview room. In the first interview, the complainant confirmed knowing she could be arrested for lying to the police.

This time, the officer has the complainant confirm she is thirteen, and tells her that anyone past their twelfth birthday can be charged criminally, and to the complainant's apparent surprise, that she can be arrested for lying to the police. The complainant again promises to tell the truth.

The Retraction

With some hesitation, the complainant then says that she told her mom during a big argument that the abuse never happened. She felt her mother had never believed her allegations against her brother. In the argument, she told her mom, "the actual truth" that sex never happened. She clarified that none of the abuse she described in the first interview ever happened. She affirmed that she and the defendant had a brother sister relationship.

Upon hearing the recantations, the Detective advised she was going to leave the room, and then accommodating the complainant's request to use the washroom. Returning the complainant to the interview room, she is left alone for several minutes. When the Detective returns, she confirms there was no conversation between them off camera, and that while passing her parents, she did not get to talk to them either.

The "Fosters" Explanation

Then the Detective asks her how she came up with all the details described in the first interview. The complainant says she took them from a TV show called "The Fosters". The complainant did not hesitate in providing the name of the show or the incest storyline to the Detective.

She described the show's storyline as one in which a foster brother and sister doing the same things she had described in the first interview, with just a few things being changed around.

The Detective suggests that someone the complainant's age would not know the sort of details provided in the first interview and reiterates the need for the complainant to tell the truth. The Detective reassures her that if something happened it was not the girl's fault.

Pressure from Mother

The Detective asks if the complainant has been receiving pressure from her mother to which the complainant agreed.

She described how her brother was now living with her father, who was not very domesticated and away from the house a lot due to his employment. Father's access to his daughter was now each weekend as opposed to alternate weekends which presumably meant the defendant would spend each weekend with his mother. The complainant described this change as "huge", especially given she and her mother yell at each other a lot and that she did not like spending more time with her father.

She described how her relationship with her mother improved after the recantation.

Consequences of Lying

When asked why it was important to be truthful to the police, she said because if lying she could go to jail and stuff, have problems getting a job and not have any money. The Detective does not correct this overly simplified impression of consequences within the Youth Criminal Justice Act. Believing the consequences of lying would be jail, the complainant still asserts nothing improper happened between her and her brother, without hesitating in her answers to the officer's questions.

When asked if the defendant had ever seen her naked, rather than a simple denial, she says yes as babies when they had baths together.

Exchange About Jail

Then the Detective says that means the first interview was not truthful and asks her what she thinks is going to happen now because of it. When she responds that she didn't know, the Detective says, "knowing what I told you are the consequences for lying to police, what do you think could happen now?".

Then this exchange occurs:

"Like I go to jail"?

Detective: "Uh, I".

"Like aren't I too young still"?

Detective: "No, once you're 12".

"So is there like a...like a kids jail"?

Detective: "Yeah, so between 12 and 18 you go to a youth detention centre it's called."

"Okay".

Detective: "Yeah".

"Cuz I just wonder I'm like I don't want to go to like an adult one".

Detective: "No".

"That'll be scary".

Discussion of Brother's Return Home

Then the Detective asks what she thinks is going to happen at home. The complainant replies it would stay the same, like every other weekend or something like that. The Detective suggests that the brother would no longer just stay at his father's and the complainant agree saying she had talked with her mother who had suggested that her brother would be eased back into the same house as the complainant.

She went on to describe the talk with her mother as being 12 hours long between night and continuing in the morning. That her mother kept asking for the truth and not believing the brother would do such things and the complainant kept saying it did happen. Then the next morning, she described herself not wanting to talk about it anymore and was prepared to tell her mother the real truth that the abuse never happened.

She specifically denied the Detective's suggestion that what was said was what she believed her mother wanted to hear, and that the retraction was the truth.

Months of Maintaining Retraction

The Detective asked her why her mother waited months to contact the police about the retraction, though the complainant did not know. She did confirm that since the retraction, the relationship with her mother was much better with them doing things together.

She confirmed that her retraction was on a truth scale of one to ten, it was a ten, just as she had said in the first interview.

Detective's Assertion About "The Fosters"

The Detective then leaves the complainant alone in the room for almost 10 minutes. When she returns, the Detective tells the complainant that there was no such story line in the TV show, "The Fosters".

Despite that, the complainant again asserts she is telling the truth this time and specifically agrees that in the first interview she was a liar.

Detective's Warning About Brother's Return

The Detective then asserts that because of the retraction, the brother was going to return and have the opportunity to abuse her again. The complainant said she was not worried about that because nothing happened before.

The Detective asserts that the mother, despite telling the complainant it would be quite a while before the brother moved back in, she would be having her son back in the house right away.

Despite that scenario, the complainant again asserted that she lied in the first interview.

The Final Monologue and Emotional Response

Then the Detective commences what was essentially a ten minute monologue in which the complainant does not say anything. Towards the end of that ten minutes, the complainant is in tears and apparently nodding in agreement with the Detective's suggestions that the abuse actually did occur.

While there were no audible responses to the Detective, it was clearly an emotionally tense end to the interview in which even the Detective sounded on the verge of tears as she left the room.

The last ten minutes were sufficiently tense that when the Detective returned, she was concerned enough to get the complainant to confirm that her nodding was not the result of feeling pressured by the Detective.

Maintenance of Retraction

The complainant confirmed that she has maintained the retraction with her mother throughout the intervening months. She confirmed her mother had said that she wished the complainant had never said anything at all, though I am unclear if that was before or after the retraction. If the mother said that before the retraction, it would be additional pressure on the complainant, if said after the retraction, it would be a very natural reaction given the upheaval to the entire family.

The complainant confirmed that the abuse did happen at the end of this video. When asked if she wanted anything, she asked for her phone. There is no explanation as to why she was allowed her cell phone in the first interview and not the second.

Viva Voce Testimony at Trial

The viva voce testimony, the complainant asserted that the abuse truly did happened. She described herself as five feet tall and would have been shorter during the timeframe of the abuse allegations. Her testimony was in a CCTV room projected into the courtroom. While I would not normally describe body sizes, especially with regard to the self-esteem issues so many teenagers have, given some of the submissions as to the mechanics of sexual intercourse, she would be described as above medium building with a protruding stomach. She was not asked as to her weight through that timeframe of the allegations or if her body shape was consistent throughout the years.

Cross-Examination of Complainant

The cross-examination of the complainant was very gentle and minimalist without any adverse impact on the complainant. When asked about the Fosters show storyline, the complainant asserted that she made it all up in her mind. The first time of sexual intercourse was in her bedroom when she was watching a TV which defence asserted was a birthday gift for her in 2016 to which she responded that she did not know. She confirmed the sexual intercourse occurred while both were standing and that both kept their feet on the ground throughout the interaction.

She confirmed that she told her cousin, his partner and her aunt that the abuse had not happened, but the circumstances around those conversations were not explored, other than in re-examination she asserted that her telling the other three people the abuse never happened was due to her mother's pestering.

She asserted that she felt pestered by her mother, but not by the Detective. She confirmed that her mother continuously told her to tell the truth about what happened.

Defendant's Testimony

The defendant testified. He denied any and all abuse. He asserted he was now living full-time at his mother's residence. Many teenager defendants testifying in a criminal court are going to appear uncomfortable, however, the defendant appeared almost with a flat manner when testifying in-chief and cross-examination. He described himself as five foot six and a half inches and that he would probably have been about five feet tall at the time of the allegations. He has a large build and weighs 276 pounds now and probably between 170 and 180 during the relevant timeframe. In the witness stand, he had a large protruding stomach.

He asserted that his sister did not get the TV in her bedroom until her birthday in of June 2016 when she turned 13.

Cross-Examination of Defendant

In cross-examination, the Crown opened with asking if the defendant love his sister, resulting in a socially awkward response but which I accept described the youth's emotional response to his sister as one in which he does love her, but doesn't show it nor does he look out for her at school. He described his sister as a loner who loves reading and being alone.

The youth does not remember the last big fight he had with his sister. He agreed with his sister, after hesitating that they have played cards on his bed, but that was mostly a game that they played on the floor, and when asked about an incident several years earlier, but which precipitated in his sister's testimony one of the incidents of sexual assault. He again answered promptly.

He claimed nothing happened during the bedroom card game then added there was a fight between them when he lost his card game. As the Crown suggested, fighting is not nothing, though I accept that the youth was focused on the sexual assault allegations when he asserted nothing happened.

He agreed he had seen his sister naked before, describing having baths together when both were very young, paralleling the testimony of his sister.

He agreed with the Crown that he enjoyed pranking his sister a lot. What he described in my view went far beyond pranking and would better be described as bullying. He would make fun of her developing body, poke her with a stick, his sister and a vacuum tube, though never her chest, bottom or thighs, flushing the toilet multiple times when she was in the shower, and sprinkling water on her. He would get on top of her to make her squirm in what was described as play wrestling as opposed to any admission of sexualized behaviour as it was six years ago. He was forthright in agreeing that his dad told him he was being weird.

He agreed that his sister had a paper route and that he would occasionally help her fold papers. He agreed that she would fold papers on the sofa. However, that paper route only started during the school year and not during the summer. He denied anything sexually happened on the sofa.

Assessment of Defendant's Testimony

The cross-examination of the accused did not undermine his testimony just as the cross-examination of the complainant did not undermine her when their testimony of prior events was viewed through the prism of teenagers describing events when they were children. Both corroborated the other on the obvious common issues of family, the home and play.

That was the totality of the evidence heard.

Crown's Submissions

The Crown took the necessary time to prepare submissions which amounted to the required analysis following the line of cases commencing with R. v. JJRD, [2006] O.J. No. 4749, creating a pathway to conviction where there was no trial evidence other than the two conflicting testimonies of complainant and defendant.

The Crown reviewed the sequential history of the abuse as described by the complainant. From kissing, to touching, to removal of clothing to intercourse has many characteristics of grooming. I would agree that the vagueness of some of the earlier timelines are quite consistent with a thirteen year old trying to recollect events occurring when she was about eight years of age.

Unanswered Questions and Concerns

However, there are many unanswered questions in this trial. The complainant asserted that the first occasion of sexual intercourse occurred in her bedroom when she was watching her TV at about ten years of age in which both she and her brother were standing up and kept both of their feet on the ground throughout the intercourse in this case.

Defence counsel submitted that sexual intercourse standing up as described by the complainant could not have occurred. Certainly, the respective sizes of the two siblings at trial, especially the defendant who as I said has a larger stomach would visually suggest such intercourse would be physically unlikely. However, I do not have any evidence to assist me whether the described intercourse included full insertion or a movement horizontally back and forth in the vaginal area other than her first video statement in which in response to a question that it was inside her vagina without any further specificity. I lack any evidence as to the respective heights and weights at the time of the incidents or the ability for actual upward insertion if that is what the complainant meant by inside her vagina.

While I have heard evidence in other trials regarding the separate school system's "Fully Alive" sex education program, the complainant was un-contradicted in this trial when asserting she did not know these events were wrong and I lack any evidentiary basis in this trial to reject her assertion.

The Television Issue

The complainant was not sure which birthday she received the TV in her bedroom as a present. The defendant asserted it was for her thirteenth birthday in 2016, not 2013 or earlier. Neither parent testified to clarify the correct date on an issue where I would expect a thirteen year old would remember that she received that gift just a few months earlier.

The Paper Route Issue

The most recent incident of intercourse occurred just weeks prior to the first video statement and it was just before the start of the school year, July or probably August. She described herself on the living room couch folding newspapers for her paper route. The defendant asserted that his sister did not start the paper route until after the start of the school year. Neither parent was called as a witness, nor any testimony or evidence from the newspaper company as to when this route started, what sort of newspapers they were and just what sort of volume of newspapers would be on the couch.

I have no knowledge as to the set-up of the living room, nor the size of the couch. I understand the complainant was sitting on the couch folding newspapers from which I could infer that the newspapers were on the couch, though her brother was sitting on the couch at the time, which may or may not mean the newspapers were on the floor or elsewhere while being folder. If being folded on the couch, I do not know how many papers she had, their size or how much of the couch they would have occurred or what happened to them after the assault.

Detailed Description and Specificity

There was a very detailed description of this incident with a demonstration by the complainant on the first video as to the respective positions of the siblings. As the Crown pointed out the additional detail as the description of the defendant kissing his sister on the right cheek as opposed to the lips while assaulting her adds a level of specificity to enhance her credibility, as does the pain she described at his inserting himself into her.

Recantations to Family Members

The complainant recanted her allegations to her cousin, his partner and an aunt. The complainant asserted she did so due to pressure she felt from her mother, despite confirming her mother always told her to tell the truth about this matter. None of these individuals testified as to the circumstances of the recantation.

The recantation occurred after a big fight between her and her mother. The relationship with her mother was much better after the recantation. I acknowledge that any complainant in these circumstances would be subject to a high emotional impact, and I can certainly understand the pressure, even, if self-imposed, to recant falsely in order to regain the normalcy of everyday life within the family. At some point after the recanting of the recantation, the complainant was no longer living with her mother.

I do not know whether she is now living with her father, an extended family member or has been apprehended by the Children's Aid Society. I have no basis with which to assess whether her viva voce testimony at trial again asserting the sexual assaults, could be motivated by being separated from her family, or corroborative of her recantation being due to pressure from the family and her being excluded from the family when she did not maintain the recantation.

The Credibility of the Retraction

In the second video, the complainant's recantation was as forceful and believable as her initial video interview. She asserted the same level of truthfulness as she did in the first video. She had a detailed explanation of a television show storyline inspiring her allegations. Apart from a hearsay denial of such a storyline by the Detective during the interview, I have no evidence of such a television show existing or the existence of such a storyline. In the cross-examination, she asserted she make it up in her mind. In the second video she did not contradict the officer's assertion that no such storyline existed.

Police Interview Concerns

In the second video, the last ten minutes were emotionally charged. The Detective had already warned that there were consequences for lying to an officer. When the complainant asked if that meant going to jail with adults, the Detective only advised that the jail was for youth only. Did not go onto say that the Youth Criminal Justice Act had a series of sentencing options from reprimands through to probation or deferred custody at home. From this point, the consequences of lying in the mind of the complainant would be one solely of jail.

Despite that implication, the complainant continued to advance her recantation. The Detective then commenced a ten-minute monologue warning the complainant that if the charges were dropped, her brother would be invited home, and the abuse would resume. While not audibly responding during this portion of the interview, the complainant started crying and responding by nodding of her head that the abuse really did occur.

It was apparently that the Detective also appreciated how intense it was and returned to the interview room (as I said) to make sure the complainant had not been pressured by the officer to change her assertions again.

The complainant also confirmed that she had maintained her recantation with her mother right up to going into the interview room.

Analysis of Credibility and Pressure

I would be naive if I did not realize that any young girl would feel powerless should her mother tell her she was not believed as well as feeling responsible for all the disruption she caused by disclosing and desperately wanting to resume the normalcy of her previous family life though obviously without the abuse.

Having watched the second video several times, the circumstances of her taking back the recantation do appear genuine to me. I find myself subjectively accepting the truth of her allegations. The question comes does my subjective reaction to the complainant's video and testimonial adoption amount to proof beyond a reasonable doubt? So as to deny the defendant's denials.

I have already addressed several concerns about what I do not know from this trial. There are more concerns I have from what I do not know.

Missing Medical Evidence

The complainant was taken to the hospital for an examination due to these allegations. I have not heard about any results or conclusions arising from that examination. I understand that the complainant's mother took her to the hospital, which would suggest she believed her daughter, at least at that time.

Lack of Physical Evidence

The defence does not have any obligation to show motive for the complainant to lie, nor did they. However, during the defendant's cross-examination there were admissions of a level of bullying to amount to a potential motive, but none of this was put to the complainant.

I lack any physical evidence at all. This is not just a lack of DNA from the complainant's clothing, but given the description of one of the assaults of the brother taking off her clothing violently, I am unaware if any clothing was damaged in that process.

Comparative Case Law Analysis

I am left with analyzing whether the circumstances of withdrawing her recantation are sufficient to fully repair the fact of her having recanted not just to her mother, but to other relatives and initially in a believable and assertive manner to the Detective in the second video.

I am aware that in JJRD case there were extrinsic evidence, namely in a diary written by the complainant.

That in R. v. O.M. 2014 ONCA 503, [2014] O.J. No. 3210, there was a confession accepted by the trial judge and additionally the fact that one of the complainant's refusing to permit that defendant from visiting his grandchildren which was accepted as state of mind extrinsic evidence.

While perhaps giving the impression of reversing the sequence analysis set out in W.D., the case law clearly supports convictions where there is no basis to reject the defendant's testimony other than the analytic acceptance of the complainant's testimony being evidence beyond a reasonable doubt as the foundation for rejecting the defendant's denials.

The decision in R. v. R.A. 2017 ONCA 714, [2017] O.J. No. 4772, is an instructive example of how challenging the credibility assessment is in these cases and the tension created in assessing a defendant's denial in light of the analytic assessment of the complainant's assertions. In R.A. the complainant was "consistent throughout" and "provided graphic details as to how the assaults took place" (para. 53). I would also hope as to that panel of two of the judges that a three to five year old would not have the sexualized knowledge demonstrated in R.A., but so much has changed since the 1990's Khan decisions referred to by the OCA. Today, the accessibility to electronic devices connected to the internet is so pervasive that I would want to hear expert evidence on the point and certainly would not be prepared to assume such sexualized knowledge to be unknown to a complainant testifying at age 13.

In the R.A. dissent, Justice Trotter described the complainant's inconsistency in asserting just one action initially but later denying she had said it as a live issue for impeachment value. Where that defendant had withstood cross-examination "without a blemish" the dissent would have ordered a new trial.

No matter how persuasive a defendant might testify, if met with contradictory independent, objective physical evidence, a defendant's denials would clearly be proven false. The difference in the JJRD line of cases is where the only evidence is the contradictory two testimonies of complainant and defendant, the risk of wrongful convictions in my view increases exponentially. This is the complex challenge in sexual assault trials where the trier of fact must assess the two testimonies of individuals the trier has only observed for a comparatively brief period of time in the witness box.

The Complete Retraction

In the case at bar, there was not just an inconsistency in one allegation, but an entire retraction of the allegations forcefully asserted during the second interview before she retracted the retraction.

Notwithstanding my personal subjective belief in the complainant's testimony that something did happen, a conviction in these circumstances would be exceedingly unsafe. The retractions balanced with the defendant not being impeached in cross-examination and lacking any other basis with which to reject the defendant's testimony, I find that the Crown has not met its high burden of proof beyond a reasonable doubt.

Verdict

Stand up sir. As such, the defendant is acquitted on all charges.