Her Majesty the Queen v. S.S., 2021 ONCJ 301

DATE: May 25, 2021 Information No.: 19 – 1468

ONTARIO COURT OF JUSTICE (at St. Hamilton, Ontario)

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

S.S.

Counsel: Ms. N. Flynn for the Crown Mr. S. Ponnampalam and Mr. C. De Giorgio for S.S.

Reasons for Judgment

An order has been made under s. 486.4 of the Criminal Code directing that any information that could identify the complainant, E.M., shall not be published in any document or broadcast or transmitted in any way.

NADEL, J .:

The Charges

[1] S.S. was charged and tried, by indictment, for sexual assault, (s. 271 of the Criminal Code), sexual interference, (s. 251 of the Criminal Code), and inviting a sexual touch, (s. 252 of the Criminal Code). All three counts relate to the same transaction that is alleged to have occurred in March of 2015.

The Relationships

[2] S.S. is 49. He stands as uncle to the complainant, E.M. She was eight when she said the events happened, 12 when she made her disclosure, and 14 when she testified. She turns 15 on […], 2021.

[3] S.S.’s wife, T., is the sister of M.C., who is E.M.’s mother. [1]

[4] M.C. has been in a common law union with E.M.’s father for the past 11 years. E.M.’s father’s name is R.L. although he goes by the name Eddy.

The Disclosure

[5] E.M. disclosed a complaint about S.S.’s behaviour towards her approximately two months prior to February 19, 2019 to Ms. R., a teacher at her public school. [2]

[6] Ms. R. said that E.M. was in grade seven when she made her disclosure. E.M.’s mother learned of it later in the day that E.M. spoke to Ms. R. E.M.’s mother thought that E.M. was 12 and in grade six at the time. Ms. R. is likely correct about the grade since when E.M. testified in April of 2021 she was 14 and in grade nine.

The Allegation

[7] In March of 2015, when E.M. was eight, her aunt and uncle drove from Ottawa to Hamilton for a brief overnight visit arriving late in the evening. E.M.’s father was working an afternoon shift and E.M.’s older stepsister, A., was on a sleepover. E.M. was in her bedroom, ostensibly sleeping. When the S.’s arrived, the two sisters went on a coffee run that took approximately 30 minutes. During that time S.S. is alleged to have entered E.M.’s bedroom and had her touch his penis, under the guise of playing a guessing game.

Living Arrangements

[8] The L.’s moved into a three-level townhouse in the east end of Hamilton on March 15, 2015. The upper level had a washroom and three bedrooms. E.M.’s bedroom was at the top of the stairs on the right. The washroom was at the top of the stairs on the left. Her parents’ and her stepsister’s bedrooms were farther down the hall. E.M.’s mother described the layout of this floor and S.S. agreed with that description. E.M. has difficulty “deciphering right and left.” She was unable to reliably describe the layout of her bedroom.

[9] Knowing that S.S. and T. were going to stay over, arrangements had been made to have E.M.’s older stepsister sleep at a girlfriend’s who lived nearby so that the S.’s could sleep in her bedroom.

[10] The L.’s had not unpacked completely by the time of this visit. There were still items boxed up and waiting to be unpacked.

[11] E.M. said that her sister’s boyfriend, M., also lived with her family. However, no one clarified the time frame when he did so. I infer that M. wasn’t part of the family when this March 2015 visit occurred since A. went to a girlfriend’s home for a sleep over and because M.C. did not name M. as being one of the residents who moved into the townhouse at that time.

The Crown’s Witnesses

[12] The Crown called three witnesses: E.M., her mother, and Ms. R.

The Defence’s Witness

[13] The defence called one witness, S.S. He denied the allegation. He said that he did not go into E.M.’s room that night and that the first time he saw E.M. on that visit was at breakfast the next morning.

The Position of the Defence

[14] The defence submitted that the Crown’s case failed on all three heads of R. v. W.(D.), [1991] 1 S.C.R. 742: viz. , (i) that S.S.’s denial ought to be accepted, (ii) that his denial should not be rejected; and, (iii) that E.M.’s evidence was unreliable and could not support proof to the exclusion of any reasonable doubt.

The Position of the Crown

[15] Ms. Flynn urged a rejection of S.S.’s evidence for reasons that will be detailed when I review the Crown’s specific submissions. Those reasons include a breach of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. Eng.) as a result of the failure of the defence to put some or all of the following suggestions to E.M. or to her mother:

• that he did not go into E.M.’s room that night and did not see her until breakfast;
• that he did not re-enter the house until the sister came back from getting coffee;
• that the L.’s did not have a car at that time; and,
• that, in addition to getting coffee, the sisters picked up Eddy and brought him home from [place of employment] where he had just finished an afternoon shift.

[16] The Crown submitted that the defence’s challenge to E.M.’s evidence, (beyond S.S.’s denial), was based on alleged unreliability. Ms. Flynn submitted that properly assessed, pursuant to the directions of the Supreme Court of Canada, any reliability deficits were irrelevant, because they related to tangential and insignificant matters. The Crown submitted that E.M.’s evidence was credible and more than sufficient to demonstrate proof to the exclusion of any reasonable doubt.

The Evidence of E.M.

[17] E.M. testified on April 21, 2021, when she was in grade nine and 14 years old. She is not fond of school, [3] is not involved in any athletic endeavours and in her spare time “mostly just writes stories”.

[18] In submissions, Ms. Flynn characterized E.M. as “child-like”. When asked who she lived with E.M. began by saying, “I live with about a million stuffed animals” before listing her parents and her dog. While she forgot to mention her step-sister, A., she interjected subsequently to name her, too, and to apologize for neglecting to mention her earlier. [4]

[19] I don’t think “child-like” is the correct adjective. E.M. was responsive but flippant on a great many occasions. This trial was conducted remotely and when I introduced myself, she said that I did not look like Judge Judy. Footnote 3 is an example of the kind of responses she sometimes made. Another example of the informal testimonial attitude that she exhibited was her response to Ms. Flynn’s question about whether E.M. had any brothers or sisters. She replied, “Ya, I don’t live with any of them but the three are related to me. They all suck.” She then giggled. [5] I don’t think “child-like” is apposite.

[20] This observation does not imply that E.M. was incredible in the sense of not intentionally telling me what she believed to be true. Her credibility was never attacked by the defence and I detected no mendaciousness in her testimony. She did, however, exhibit a lack of appreciation of the seriousness of the proceedings in which she was engaged.

[21] E.M. recounted her recollections three times: twice in-chief and then again during her cross-examination.

E.M.’s Narrative of the Allegation

[22] In response to Ms. Flynn’s invitation to explain why she was here E.M. prefaced her account by saying, “… I barely remember it.” She said that her parents and aunt went out for some reason and she had to go to bed but that she couldn’t sleep, and her uncle came upstairs and peaked into her room. He asked why she wasn’t asleep, and she told him that she couldn’t sleep. He asked if she wanted to hear a bedtime story. She did so he went down to the basement where all her things were kept, and he returned with three or four books.

[23] One of the books was Seeing Red by Robert Munsch. He read the books, but she still couldn’t sleep so he asked if she wanted to play a game and she did.

[24] “So the game was like you had had to hold some sort of doll and guess who it was without looking. And the doll was Twilight Sparkle.” They played many variations of that game. One variation was that she had to hold something else while moving up and down on it. She demonstrated the movement showing her fingers curled around something going up and down slowly.

[25] She wondered what the other thing was and peaked. Initially she thought it was something rubber. She described it as feeling weird being “slimy but dry” but “it was really hard to explain.” She said that it was his “wee-wee” and that she was not comfortable saying certain words, like penis.

[26] Seeing that it was his penis she cried quietly but said nothing for a time and then said it, (the doll), was Twilight Sparkle. She then cried into her pillow and her uncle asked her what was wrong and so she told him what happened. Her uncle said, “no, no, no,” that it was his hand “even though his hand felt nothing like the thing”. She then demonstrated using one of her hands to touch the other.

E.M.’s Second Iteration

[27] Ms. Flynn then had E.M. tell the story again trying to extract a more detailed recitation. The Crown began by confirming that these events happened at the L. townhouse home on […] Street.

[28] The reason for that confirmation was that E.M. had told the police that these events happened at their home on the Hamilton mountain where the family once lived. After an officer received E.M.’s statement, the officer asked E.M.’s mother about E.M. saying that their house was on the Hamilton mountain. Her mother then approached E.M. and corrected her about where the family lived. So, E.M. agreed that the events happened at their […] Street townhouse, “the one with the creepy clown music.” Neither counsel asked E.M. about what she meant by that comment.

[29] In this second iteration, E.M. said that when her uncle and aunt arrived both of her parents were home. She was in her room trying to sleep when her parents and aunt went out “somewhere for something, I don’t really know, they wouldn’t tell me.” In response to a question about who was taking care of her, E.M. said that “Uncle S. was technically baby-sitting me at the time.”

[30] When asked where S.S. was when the others left, she replied, “Most likely he was downstairs on the couch watching tv.” While she did not see her parents and aunt leave, as she was in bed, she said that “they said they were leaving.” She was “not entirely sure” if she heard them leave.

[31] Her sister and her sister’s boyfriend were not home. “They were out for the day or something.”

[32] E.M. said that she has always had trouble sleeping. At that time in her life she was terrified of the dark so that her doorway was always half-way open to the bright light in her hallway, which illuminated her room to some extent.

[33] She was in her bed without any room light on. Her bed was in a corner of the room, up against a wall, although she can’t say whether it was on the right or left side of the room because she has trouble distinguishing those concepts.

[34] Her uncle peaked in around the door while standing in the hallway. He asked her why she was up, and she explained that she could not sleep.

[35] He asked if she wanted to hear a bedtime story and she did, so he went down to the basement where all her stuff was kept and he brought back three books, including Seeing Red. I asked E.M. how he would have known where to find the books and she replied that, “I must have told him.” She said that she then sat up in bed “a little giddy, yeah, bedtime story.”

[36] The lighting remained as it was, with no light on in her room and a hall light illuminating her room to some extent.

[37] She was under her covers and her uncle lay down beside her on top of the covers. She put her head on his shoulder and he read her three books, starting with Seeing Red. When he finished reading the books E.M. still couldn’t sleep so he asked her if she wanted to play a game and, “I was, oh ya sure I like games”, she said herself.

[38] Her uncle said nothing else to her before going back down to the basement and bringing up some dolls. He came back with four “equestria” dolls: Sour Sweet, Twilight Sparkle, Rarity and Applejack. She said they were human dolls with horse ears and were “about the height of a piece of paper”.

[39] He was holding the dolls and explaining the game. “The game was that I stood behind him and hold a doll without looking, with my eyes closed, and I have to guess which character it was.” She described that her front was facing his rear and they are both looking in the same direction with her behind him. A doll is held out by her away from her body while her eyes are closed.

[40] E.M. said that this was basically the “main game” in which her uncle gave her a doll that she took from him and held it in her hand. “He was in front of me and he gave the doll to me and I took it and he turned around and I stood behind him and I held the doll.”

[41] She said that her eyes were closed when he handed her a doll and she held it away from her body and she had to guess which one it is by manipulating it in one hand and moving it around to guess which doll it was but she peeked and repeatedly described herself as “a little eight-year-old cheater.”

[42] She demonstrated that she held the doll in her left hand, with her hand down by her side and then extended her left arm up and away from her body, to her left side, almost to shoulder height.

[43] Ms. Flynn asked if she went through all four dolls and E.M. said that she was “pretty sure we did.” And, that it was her uncle’s idea to play this game and he explained how to play it to her.

[44] She testified that they were standing facing each other in front of the long side of her bed when he explained the game and that the dolls were in the basement when he explained the game to her. He told her that he was going to give her a doll and that she had to guess which character it was, and she testified that she thought to herself that she was “going to knock this one out of the park.” She waited while he went down into the basement to come back with the dolls.

[45] When Ms. Flynn asked E.M. what happened after the first doll, E.M. said, “Then we switched the game up a tiny bit. I don’t really remember how we switched it up a tiny bit but, ya, we did.” And, that it was her uncle’s idea to do so.

Q: Okay and whose idea was it to switch the game up a bit? A: It was S.’s idea. Q: Okay, and what did he say to you? A: Um, he said alright we’re going to change the rules a little bit, something along those lines. Q: Okay and what did he say, what did he explain, if anything? A: I don’t remember. Q: Okay, what game did you understand, how was the game changed? A: I don’t remember until the last part where, um, you had to have your eyes closed and hold the doll the same way but in the other hand you had to hold something while moving it up and down and you had to guess what character the doll was, and, ya.

[46] In the changed game her uncle was still in front of her with her standing behind him with both of them facing in the same direction so that E.M. was looking at his back.

[47] Q: Then after he explains or tells you how to play the new game what happens? A: We play the new game and I have my eyes closed and I was moving the thing up and down, it was slower than this, it was like this – (she demonstrates) - but um, and I open my eyes to see it was Twilight Sparkle and to see, what, what the heck is this other thing, I didn’t say that but I thought it, … so I peek over it just like , like it’s hard to tell what that thing is so I peak over a little more but not enough to get caught, if that makes any sense.

[48] E.M. said that she was peeking over from behind him to see what the thing was and that she was “looking from the side technically.”

[49] Q: In what direction and what are you seeing? A: I was looking forwards and I saw like this weird skin thing – it was skin coloured - and I get a closer look and I see it was coming from out of his pj bottoms and, and so I’m just like “O God this is happening” so, um, so I stayed there continuing to move my hand up and down and I was crying but I wasn’t making any noise I was just being silent as tears ran down my face and… Q: Before you peeked around and you were standing behind Uncle S. how did your hand come into contact, uh, before the moving up and down? How did that happen? A I don’t remember.

[50] The Crown then sought any further description of what was coming out of his pj bottoms. A: It was, uh, curved upward and, um, it felt weird, it was like slimy but dry. It’s hard to explain. Q: And at the time did you know what you were looking at? A: Um it took me a few minutes to realize what it was … I realized it was his go-wee-wee and I was thinking to myself, oh okay this is happening now and ah tears came down my cheek and the tears were itchy, like they were like really itchy cuz there were like so many of them and like they were drying so they were like itchy, anyway Q: why were tears coming down your cheek? A: Because I was crying because I knew what I was doing. Q: Had you ever been taught about a good touch and bad touch? A: I mean, not in the sense, but yes, kind of, not, I’d never been really told about the touching, I was told never to let anyone touch my no-no squares, … (her crotch and her chest area). Q: When this was happening and you realized you were touching Uncle S.’s wee-wee, how did you feel about what was happening? A: I, I didn’t feel good that’s for sure. I was upset, I was sad, I was scared, I was confused, maybe a little betrayed, um, but I kept moving my hand up and down for some reason, I don’t know why I kept doing it, and it felt like either a few minutes or like an hour – the time was moving weird and I was thinking to myself, “just say Twilight Sparkle and it’ll stop.” So, like after God knows how long I say, “it is Twilight Sparkle.”

[51] Q: And what if anything did Uncle S. say when you said Twilight Sparkle? A: Um, if I remember correctly, it was something along the lines of “very good” or something. I don’t really remember what he said, it was something along lines of very good.

[52] She said that she then let go of his penis and the doll and got on her bed on her knees and put her face into the pillow and cried “like little baby.” Her uncle asked her what was wrong, and she told him what had happened and, “he’s like, no, that wasn’t it, that was my hand. he’s like here touch it. So, so I feel his hands and it’s like oh, okay but I, but it wasn’t ok cuz it wasn’t his hand. it did not feel like his hand. You cannot make those motions if it was his hand. It felt nothing like his hand.”

[53] E.M. testified that she knew it wasn’t his hand because it didn’t have the same “texture” and she couldn’t make the same motions as she did previously. But she lied to and said “okay, it was your hand.” She either doesn’t know why she lied or she’s forgotten why she said that “… probably just to get him out of [her] room.”

[54] Before Uncle S. left the room, he hugged her and said goodnight and he left, leaving the door open. And “a few hours later or so”, she heard her parents and Aunt T. come home before she cried herself to sleep. While she wanted to go downstairs and tell them what happened she didn’t because she didn’t want to get in trouble for not sleeping. She felt, subjectively, that it took a really long time for her parents to come back. She did not refer to a watch or clock and she said that she couldn’t tell time at that point in her life.

[55] S.S. never came back into her room that night. She believes that she was wearing pink jps and that he was wearing dark blue pj pants with a red plaid design and a red sweater that was a faded salmony red colour with white drawstrings.

[56] E.M. recounted the next morning. This was “probably the part I like about the story.” The next morning her aunt came in with a box of Tim Horton’s donuts and she thought, “oh my gosh, yeah donuts, and I saw like this Boston Cream and I took it and it was S.’s.” She said that she took that one “because, I don’t know, because I forgot it was Boston Cream and it looked cool.” She testified that after she took that particular donut her aunt said that that donut was for S. In cross she said that she was sitting next to her uncle at the table and that she took that donut because she wanted to eat it, and that T. said it was for S. and she’d forgotten that she didn’t like that variety.

[57] E.M. testified that her aunt and uncle left later that day and that that was the last time they ever visited together and she had not seen S.S. from that day until the day she testified, which was April 21, 2021.

[58] Ms. Flynn then took E.M. through the narrative of her disclosure. E.M. described talking to two girlfriends on that day and getting what she called a mental “falcon punch to the face” [6] of memories of this night that hit her so hard that everything else was drowned out. It was that flood of memories from the “falcon punch” that day that led to her confiding in Ms. R., who had taught E.M. in grade four. While describing this disclosure E.M. said that Ms. R. gave her a free chocolate milk and another free treat and that her principal gave her two free Kit-Kat bars. Ms. R. testified that she had no recollection of giving E.M. any treats and she was not present throughout E.M.’s meeting with the principal.

[59] E.M. said that these falcon punches did not happen often. She recalled having experienced them on three occasions including the day of her disclosure.

E.M.’s Third Iteration in Cross-Examination

[60] Mr. De Giorgio conducted E.M.’s cross-examination. He began by confirming E.M.’s evidence in-chief that she never saw S.S. again after the morning of the incident that she described. E.M. said that she was certain that she never saw her uncle again, even months or years later until the day that she testified, (when S.S. appeared on the Zoom screen during his trial.)

[61] E.M. said that while she didn’t recall the time of year that the events happened, she had a hunch that it was around summer time because the next morning was sunny and “going outside is for losers.” She described the next morning as a perfect day when you don’t feel anything, not too hot or too cold and then added with a very theatrical sigh, “I remember when summer was like that. I miss those days.”

[62] Mr. De Giorgio then confirmed with E.M. that she was awake and downstairs when her aunt and uncle came to visit; that she was not in her bed when they arrived. Q: You stated … when you spoke to [Ms. Flynn] that you were awake when S. and Aunt T. came to your house? A: Yes Q And you were downstairs at that time? A: Yes Q: So you saw S.? A: Yes Q: And you also saw your mother and your Dad, right A Um hum. {meaning agreement/yes} Q: Your mother and your dad were both home at the time, is that correct? A: And my dog. … Q: And what time of day was this when you saw them? A: I don’t remember but um I’d say maybe either during the afternoon or during the evening, it’s hard to tell, I don’t remember.

[63] While she was uncertain of the time of their arrival, she was certain that she was not wearing jps, she was wearing “normal people’s clothes”. She could not recall what S.S. was wearing when he arrived but thinks he was wearing a sweater.

[64] Counsel then turned to the number of times that her uncle visited her at their […] Street townhouse, and she estimated that he visited that residence four times “in general”.

[65] Turning to question her about the location of her toys, E.M. said that her hard plastic toys, including My Little Pony and Equestria dolls were all in the basement, “the cold, cold basement”. She testified that all her toys were in the basement and that, “I am a filthy little pig, so they were probably all over the basement floor as well.”

[66] She didn’t remember if she told him which books to bring up, but her books were on a shelf in the basement. She estimated that it took her uncle five to ten minutes per book to read each of the books. That said, she characterized herself as not being great with time, either.

[67] Mr. De Giorgio spent some time attempting to elicit answers that demonstrated the improbability of there being sufficient light coming into E.M.’s bedroom to read to her. He attempted to do that by having E.M. describe the configuration of her door and her bed and the room in general. In the course of this questioning E.M. said, among other things:

• the light is always the same and it will always be the same; [7]
• if the door was opened all the way open it would not hit any part of her bed;
• the head of the bed is farthest away from the door;
• but she also said that if you open the door the edge of the door is closest to the head of the bed (sic); and,
• the light from the hallway shone up the pages of the book and not its cover.

[68] This was a somewhat futile exercise because E.M.’s ability to explain special relationships was severely limited, undoubtedly compounded by her inability to securely distinguish left from right.

[69] I curtailed Mr. De Giorgio’s examination in this area because, while I had the point he was trying to make [8] , irrespective of a better picture of the configuration of the doorway, the size of the room and the brightness of the hallway light, without knowing the size of the print on a book being read in that room under those conditions, and without knowing the extent of the contract between that print and the background of the page and without knowing the acuity of the eyesight of the reader, not much turned on this issue.

[70] E.M. said that after being read to, her uncle went down to bring up the dolls and that E.M. did not tell him which ones to choose.

[71] When he returned the door was open the same way, “always has been, always will be,” one of the stock phrases E.M. used during her examinations. Another was, “I’m a little eight-year-old cheater”.

[72] There was some variation between her direct and cross-examinations. In cross, she said that he went downstairs and came back up with the dolls and asked if she wanted to play a game. In direct she said that he asked if she wanted to play a game before he went down and brought back up the dolls.

[73] E.M. maintained that during the games S.S. turned around so that they were both facing in the same direction with the hallway light shining on their left sides.

[74] Mr. De Giorgio attempted to have E.M. provide further details of the events she was describing. She said that her uncle was holding three dolls and that she has one, (“he’s holding all four except for the one that I have”), and his hands were straight down at his sides.

[75] Counsel then asked: Q: And you’re about a foot or two away from him at this point? (emphasis added) A: I’d say ya, a few inches away from him.

[76] E.M. agreed that she was a foot or two away from her uncle but immediately contradicted that agreement by saying she was “a few inches” away.

[77] She used a stuffed doll that she was clutching together with the large table top microphone she was speaking into to demonstrate the distance that she was away from her uncle. She put the two objects together and demonstrated that she was the length of the two items away. To be clear, she demonstrated that the distance between her and her uncle was the total length of her stuffed doll and the length of the microphone. This was a distance that I estimated, on the record, to be close to two feet and I clarified that she was referencing the total length of both objects.

[78] Ms. Flynn interjected and said that she, (i.e. the Crown), understood E.M. was demonstrating the distance between the two objects. E.M. then adopted Ms. Flynn’s suggestion and maintained that she was only a few inches away from her uncle.

[79] I stress here that when E.M. first demonstrated the distance that she was standing behind and away from S.S.’s back she touched her doll to the top of the microphone and said it was the total distance of the two. Moments later, after hearing Ms. Flynn’s suggestion about a much smaller distance she adopted that suggestion and pulled the doll away from the tip of the microphone.

[80] Mr. De Giorgio then tried to elicit a better word picture of their relative positions. E.M. said that she was a few inches away from her uncle and that his arms were down and that he was holding the dolls in his right hand. I asked E.M. to raise the hand he was holding the dolls and she raised her left hand and I noted that for the record. E.M. then said he was holding the dolls in his left hand.

[81] She described these dolls as being made of solid plastic and that they were a little longer than her stuffed doll. I estimated that she was describing something nine to twelve inches in length. During her evidence E.M. demonstrated how she held the dolls when she was supposed to guess which one was in her hand. She held the doll down by her left side and the lifted her arm up and straight away from her side, to almost shoulder height, out to her side.

[82] She never explained how her uncle would know if her guesses were correct. She could not say which doll she guessed first only that Twilight Sparke was the last of the four to be played with.

[83] Defence counsel asked if she was to hold a doll in her left hand and a different object in her right hand and E.M. agreed that was correct. Counsel asked if her left arm was stretched out wide away from her side and she answered, “always and forever.”

[84] E.M. said that her right arm was at her side: “Um, my right arm was at my side. I don’t really remember how he changed the game. He didn’t like say like hold a different object or anything but like, (long pause), like he changed it up a little time I don’t know how he did it, but he did.” … Q: You moved your right arm independently; he didn’t touch your right arm is that correct? A: Uh, no he did not touch my right arm, I was just supposed to grab something. She said that she looked “because I’m a little cheater”

[85] E.M. said that her uncle’s arms were at his side and that she was supposed to grab something that he provided. She said that she thought that he directed her to the thing because her eyes were shut, and he told her later that she was supposed to move it up and down. She could not say how long she held it for because tine was passing weirdly but she had his penis in her hand for a minute or so before she realized what it was. She was having to peek slowly forward and slowly to the side. Her head was at about the height of his bum.

[86] She said that her feet did not move during this event and she felt awkward. While she tilted her body, she could not see the front of his body and could not see his stomach.

[87] Counsel asked: Q: How far did it extend out from his body? A: I can’t um, far to not far, as I’ve stated I’m not great with distance or right or left or anything really. Um it was like kinda far but also not really far. It’s really hard for me to explain.

[88] She said that her uncle was in her bedroom for “an hour to 30 minutes or so”. She really didn’t know.

[90] E.M. told Mr. De Giorgio that she knew her uncle would be sleeping on the first floor because they didn’t have enough room for them on the second floor. She said that her older-step sister’s boyfriend, M., was living with them at the time but she believes they moved out “in January of 2015” (sic).

[91] In describing getting falcon punched on the day that she made her disclosure to Ms. R., she said that she heard two voices, a blue voice and a yellow one. The blue voice urged her not to say anything and the yellow voice urged her to talk.

[92] Returning to his opening questions E.M. told Mr. De Giorgio that she knew that her dad worked at [place of employment] then as he did now, that he’d always worked there. Further, she remembers seeing him at home that day because he was on day shift; and, that she saw her father leave with the others that evening. Having said that she immediately contradicted herself by saying that she did not see them leaving because she had to go to bed.

[93] E.M. thought her bedtime, when she was eight, would be around “10:00 or 9:00 o’clock”, (sic), but she wasn’t sure.

[94] While not very clearly put, the following exchange occurred near the end of E.M.’s cross-examination: Q: You went to bed and at that point your parents were still in the house or had they gone at that point? A : They had left. Q: And it was only Uncle S. there? A: Yes. Q: And when you went upstairs where was Uncle S.? A: He was downstairs. Q: In the house? A: Yes Q: Okay, and what was he wearing at that point?

[95] In answer to this last question E.M. agreed that S.S. was wearing his sleep garb. In addition, she was asked how long elapsed between the time she saw him downstairs and the time when he came up to her room. To that she replied that she was not sure but that it felt like a long time.

[96] In concluding his cross-examination of E.M., Mr. De Giorgio had E.M. agree that she told the police that she did not have a great memory of that day. She also agreed that she had an active imagination.

[97] E.M. agreed that she watched something on YouTube that was similar to what happened to her. It was a video about sexual assault against children that she watched prior to making her statement to the police. While E.M. agreed that she had watched that sort of video, she said that that video was something she watched years before she spoke to the police.

[98] When counsel suggested that she was mistaking what she says happened that night for what she remembered from watching the YouTube video, E.M. disagreed: “I don’t remember much about that night but I remember what happened at that specific time.”

[99] I asked a few questions of E.M. and she told me that she put herself to bed that night. She was told to go to bed, and she did before her parents left. She gave them a kiss and a hug goodnight.

[100] She was only asked to touch something with her free hand during the final version of the game. While the game changed each time during the second and third versions, she was not asked to touch something with her free hand. While she knows the game changed each time, she does not know how it changed in the second and third versions.

[101] Finally, she does not know her current height but agrees that she was substantially smaller when she was eight than she is now.

M.C.’s Evidence

[102] M.C. is 46 and E.M.’s stepmother. She has been with E.M.’s father for eleven years. She has two adult daughters, A., 30 and J., 28.

[103] On March 15, 2015 E.M., A., Eddy and M.C., moved into the townhouse on […] Street, in Hamilton where they lived for about a year.

[104] M.C. said the S.’s visited that address for the first time in March of 2015, just after they moved in, and they visited again in June of 2015.

[105] Having just moved into the townhouse, M.C. said that their unpacking of boxes was still “a work in progress”. While the kitchen was unpacked the main floor was not.

[106] She put E.M. to bed before the S.’s arrived. When she did so, she told E.M. that she and her sister would be going out for coffee when they came. E.M. was in her bed, but she believes that E.M. would have heard her aunt and uncle arrive.

[107] She testified that T. and S. arrived around 9:00 or 10:00 p.m. for their March visit. She and E.M. were home, while Eddy was working an afternoon shift from which he returned between 11:30 and midnight.

[108] When the S.’s arrived she and her sister left to grab coffees from a Tim Horton’s drive through. They returned with the coffees about a half hour later. When the sisters left, E.M. was supposed to be sleeping in her bedroom.

[109] Several topics were broached with M.C. in-chief and in cross, including:

• S.S.’s knowledge of Eddy’s whereabouts;
• Who was in charge of E.M. while the sisters got coffees;
• Where S.S. was when the sisters left;
• Where S.S. was when the sisters returned;
• What S.S. was wearing;
• Where the S.’s slept;
• When the S.’s left the townhouse the next morning; and,
• Whether the S.’s ever visit that address again.

[110] M.C. and S.S. agree that the S.’s visited this townhouse again a few months later, in June of 2015 and that E.M. was present for that visit.

[111] M.C. said that she told her sister, or at least she believes that she told her sister, that Eddy would be at work when they arrived, and she presumed that her sister would have relayed that information to her husband.

[112] M.C. did not recall any discussion with S.S. before the sisters left for coffee, other than the usual, ‘how are you, how was the drive?’. She recalled no discussion with S.S. about him being in charge of E.M. while the sisters left to get coffees. But she did say, in-chief, that when they left S.S. was downstairs on the couch watching television. Similarly, she said that he was still there on the couch watching tv when they came back from their coffee run.

[113] This is a major point of contention and departure between her evidence and that of S.S.. It is one of the reasons for the Crown’s submission that his evidence ought to be rejected, so I shall reproduce Mr. Ponnampalam’s cross-examination of M.C. in this area. [9] Q: You left S.S. behind? A: Yes. Q: And S.S. was in the backyard when you left – is that right? A: I believe he probably just had a cigarette after they drove from Ottawa. Q: Okay, so when you left he was in the backyard? A: I don’t recall him being in the back yard but … {implying, to my year, that he may have been} [10] Q: And when you came back, he was in the backyard? A: No he was on the couch, from what I can recall, (M.C. laughed a little embarrassed laugh at this point.) Q: From what you recall but you don’t know. A: No, I mean like my daughter told this way after the fact. Q: And when you left, he wasn’t wearing pjs. A: I don’t think so. Q: And when you came back, he wasn’t wearing pjs. A: I don’t think so. I don’t remember what he was wearing – I didn’t pay attention.

[114] M.C. estimated they were gone for about 30 minutes in total, ten minutes to drive to the Tim’s store, ten minutes to get coffees and ten minutes to drive home. [11] Her sister, T. did the driving. No questions were put to M.C. in cross about the L.’s not having a car or about picking up Eddy at work during this coffee run. Both facts were testified to by S.S.

[115] According to her, the S.s left early in the morning before anyone else in the house got up. There was no purchase and eating of donuts on the morning of this visit – that happened during their next visit in June.

[116] M.C.’s recollection of the particulars of that June 2015 visit were not clear. She believes that they came with some of their children but wasn’t sure “as it has been a few years.” There was nothing out of the ordinary about that second visit.

[117] Prior to these two visits to their townhouse, S.S. had met E.M. “lots of times” for birthday parties and other family get-togethers.

[118] June 2015 was S.’s last visit with them. T. continued to visit but without S. T. told M.C. that was because S. was fighting with other family members in Hamilton. S.S.’s failure to visit was not something that M.C. otherwise remarked upon. She did not say or suggest that it was important or significant.

[119] M.C. agreed with three minor matters put to her in cross: viz. the adults regularly smoked outside in the back yard of the townhouse and usually entered the home through the back of the townhouse. She also agreed that M., A.’s boyfriend, who lived with the L.’s for a period that was not identified in the evidence, was a white male who wore glasses. While S.S. is also a white male who wears glasses the defence did not suggest to E.M. that she was mistaken about the identity of the male that she made her complaint about.

S.S.’s Evidence, in-chief

[120] S.S. testified that he had met E.M. roughly eight to ten times by 2015. That number includes the two visits to the [ …] Street townhouse.

[121] They visited on a Friday in the last third of March because they had come to celebrate certain family birthdays. They drove from Ottawa, leaving after work and arriving close to 11:00 p.m., having made one stop at an Indian Reserve during the drive. He said that, on the way, they got a call from M.C. asking if T. could pick up Eddy who was at work.

[122] When they arrived, they entered the house through the backyard. M.C. was waiting for them in the house on the first floor. They greeted each other and she told him that E.M. was sleeping and that they, (the two sisters), would be back. The women left through the back and he followed them out into the yard.

[123] He had a carton of smokes, a Monster Energy drink and his phone. He sat at the picnic bench in the backyard and stayed outside until they returned. He spent the half hour or so that they were away using his phone, smoking cigarettes and drinking his drink.

[124] S.S. worked as a dispatcher, so he spent a little time checking his work app and then spent most of the time going through his sports apps and chain-smoking. He smokes about two king-sized packs of cigarettes daily.

[125] He said that as the L.’s didn’t have a car, his wife and sister went to pick up Eddy from work as well as stopping for coffees. He estimates that it took about 30 minutes for them to return with Eddy and coffees. He remained outside in the back yard the whole time, until they returned.

[126] When Eddy and the women arrived they greeted each other and hung out in the back yard catching up, chit chatting and smoking for another half hour or more until the four of them went into the house and he and his wife went to bed in A.’s room.

[127] In the morning he made a run to Tim Horton’s and got a variety pack of a dozen donuts and coffees and came back with them. When everyone woke up, they socialized a little bit and then he and his wife left to pick up their children.

[128] S.S. said that he arrived wearing jeans and a hoody, which were his work clothes. He wears that because in his job he enter trailers and it’s quite cold in Ottawa. He wears and wore gym shorts and a tee-shirt to bed, that being his usual sleeping garb.

[129] He did not see E.M. at all that night but did see her the next morning. There was nothing unusual about their interaction then. E.M. was her usual friendly and chatty self. There was nothing out of the ordinary.

[130] He did not specifically know where E.M.’s toys were in the house although there were some toys strewn about the living room on a couch, a table and the floor.

[131] When asked about equestria dolls, S.S. said that he did not know what equestria dolls were, that he was not familiar with them and wouldn’t know what they were.

[132] He and his wife did return for a visit in June, about three months later. They had his wife’s daughter, F., with them for that visit, along with his son, Tr. [12]

[133] Defence counsel then turned to why S.S. had not returned to visit the L.’s in Hamilton after June of 2015.

[134] He said that his son, Tr., who was then 14 and living in Hamilton with his mother and her new partner, was having some troubles. In April Tr. had been using drugs and was suspended from school. That led to an altercation with his stepfather, so Tr. came to live with the S.’s in Ottawa at the end of the school year.

[135] But, Tr. wasn’t registered in school and the S.’s work late so Tr. spent the weekdays alone. As a result, the S.’s spent their weekends focusing on Tr. so the family didn’t travel at all that summer.

[136] In September they registered Tr. in school, but he has special needs and they needed to set up counselling for him, too. So, there was no travelling that whole school year, as Tr. was the focus of their attention during that period.

[137] S.S. works as a tow truck and transport truck dispatcher. His wife works as a restaurant manager.

S.S.’s Evidence in Cross-Examination

[138] Initially, Ms. Flynn had S.S. confirm the following:

• Who was present for the June visit;
• The sisters going on a coffee run was a regular thing; [13]
• They knew before their arrival that they had been asked to pick up Eddy;
• They were to pick Eddy up at work or from work;
• He knew A. would not be home;
• He expected some socializing when they arrived.

[139] Ms. Flynn challenged S.S. on several areas including whether he was baby-sitting E.M. when the sisters left; whether it was too cold to stay outside for an hour; and, that he must have gone inside to use the bathroom or move his belonging in.

[140] During submissions Ms. Flynn suggested S.S. was evasive in cross-examination and that that was a reason to reject his evidence. The most significant area that she relied upon was in the following passage: Q: Now, you understood when M.C. says, “E.M.’s upstairs sleeping we’re gonna be, we’ll be back soon,” that meant you’re staying here with E.M., right? A: I assume that’s what it meant, yes. Q: Right. And you knew E.M. was 8 years age at the time, correct? A: Around that age, yes. Q: Right, too young to be left by herself correct? A: Yes, of course. Q: Right, so you knew that you were, in essence, baby-sitting E.M., right? A: Ah, I wasn’t, I was, I assume by the way it played out that I was baby-sitting E.M.. No one asked me to baby-sit E.M.. I was told, “E.M.’s upstairs sleeping, we’d be back very quick” and I went outside. Q: Right, and so you do accept that you were the adult in charge of her care while her mother and your wife and her father were not there. You were the only adult in care of her while they were out of the house, correct? A: I was the only adult present, yes. Q: If there was a fire in the house you would have gone in and rescued E.M. and got her out of that house to safety, right? A: Absolutely. Q: Right. So you can accept that you were in care of her while her parents weren’t there. Agreed? A: Agreed. Q: You don’t dispute that you sat in the living room townhouse watching tv do you? A: No I sat on the couch at the townhouse, yes. Q: Right. You just dispute that you were sitting on the couch in the living room when T. and M.C. left that night. A: Correct. Q: Right, you say you’re in the backyard having a smoke and your Monster drink, right? A: Yes Q: And it’s possible you were on the couch watching tv when they came back some 30 minutes plus later. A: No.

[141] S.S. said that he never went into the house while his wife and sister were away; that he never went in to check on E.M.; that he stayed outside the whole time.

[142] Ms. Flynn suggested that that was unlikely since he had just driven “six-plus” (sic) hours and must have needed to go to the toilet. S.S. did not accept or agree with that suggestion and explained that he and his wife had used the facilities when they stopped along the way.

[143] He said that he was not familiar with the book Seeing Red by Robert Munsch and that Munsch was not an author that he read to his son Tr. as a child.

[144] While he accepted that there were toys and books and dolls in the house, he denied knowing that E.M. kept her toys in the basement.

[145] Ms. Flynn challenged S.S. about smoking enough to occupy 30 minutes. S.S. described himself as a heavy smoker and said that he would smoke three or four cigarettes in 30 minutes. The L.’s did not allow smoking in their home. S.S. was not able to say how many cigarettes he smoked specifically when the sisters were away as he did not keep a count.

[146] In addition to attempting to challenge S.S. on the number of cigarettes that he smoked, Ms. Flynn also suggested that since it was March it must have been too cold for him to have spent half an hour outside. S.S. rejected that suggestion and said Ottawa was colder than Hamilton. I note here, as I noted to Ms. Flynn during submissions, that absent any evidence about the night-time temperatures in Hamilton that Friday I could not make much of her suggestion that it was too cold to spend 30 minutes outside.

[147] A further area that Ms. Flynn challenged the defendant about was why he stopped visiting the L.’s after the June 2015 visit. S.S. agreed that before March of 2015 he and his wife would visit once every two to three months. He said that that would be a safe estimate because they would come to Hamilton to see their children.

[148] Ms. Flynn suggested that he would see M.C. on those visits, (implying that he would therefore see E.M., too.) S.S. did not accept that suggestion. He said that he would not necessarily see M.C. on each visit to this area. Rather, who they visited depended on the reason for the visit, as there were other sides to their families.

[149] S.S. agreed that prior to being arrested for this allegation in 2018 he had no issues or problems with E.M.. While he estimated that he had met E.M. eight to ten times by June of 2015, he never actually counted the number and that number included at least two large Christmas parties where the families rented a Legion hall.

[150] This area of cross-examination culminated in the following suggestion and denial: Q: And then after June of 2015 all of a sudden there was no more face to face uh with E.M. ever, right? A: Ah, no, not from June of 2015 Q: Right, and I’m going to suggest to you sir, that is because you didn’t want to face E.M. because she reminded you of the terrible abuse you did to her in March 2015 during your visit. A: That is false.

The Defence’s Submissions

[151] Mr. Ponnampalam made submissions on behalf of S.S.. He submitted that there was no reason not to believe S.S.’s evidence; that he gave his evidence in a forthright manner, did not waiver during his cross-examination and denied the allegation made against him by E.M.

[152] Counsel pointed to the lack of anything unusual being noted or noticed by M.C. in the S.’s visit in June of 2015. While that is true, it is not a compelling circumstance as discussed in D.D. , which I shall cite and reference later in these reasons.

[153] Of more weight is counsel’s submission that S.S.’s evidence is confirmed by M.C.’s evidence, or at a minimum not contradicted by her evidence about where and when he was outside. That evidence was excerpted above at paragraph [113]. I appreciate the force of that submission but note that it speaks to the bookends of a period of time and does not, of necessity, lead to a finding that S.S. was outside the whole time between those bookends.

[154] Mr. Ponnampalam pointed to the fact that S.S. described himself as a heavy smoker, which, if true, makes his evidence about smoking all the more credible.

[155] Counsel contended that his client’s evidence was reasonable and believable. After a long drive he drank his usual drink, smoked several cigarettes and caught up on his phone. There was and is nothing unreasonable about his evidence.

[156] In response to my observation to counsel that it was never put to M.C. that she was leaving to pick up her husband, counsel noted that both the defendant and the witness agreed that the two sisters left and came back with coffees. Counsel implied that the failure to put that specific suggestion had no bearing on the fact that S.S. was outside smoking. He was unwavering in his evidence that he was outside the home for the approximately 30 minutes that the sisters were gone.

[157] Mr. Ponnampalam stressed that there is no reason to doubt S.S.’s version of the events either from what he said or the way he said it. (Despite the somewhat strident manner of Ms. Flynn’s cross-examination,) [14] S.S. never raised his voice and never got flustered.

[158] Mr. Ponnampalam made brief submissions on the second prong of the W.D. analysis, urging a finding of not guilty on that basis, too.

[159] Finally, counsel turned to the third aspect of the W.D. and urged a finding of not guilty due to the unreliability of E.M.’s evidence; that her evidence was insufficient to support proof to the exclusion of any reasonable doubt. During this portion of his submissions, counsel listed the following weaknesses in her evidence:

• E.M. was mistaken about the clothing that S.S. was wearing as he was not wearing pj bottoms or a sweater.
• her description of what transpired that evening is contradicted by both her mother and by S.S. in many respects.
• E.M. said that her father was home while both S.S. and M.C. testified that he was not.
• E.M. said that she got a hug from her father that night before the adults left, which cannot be an accurate recollection of the events of that night.
• E.M. said that she never saw S.S. after the next morning until she saw him at his trial. She was wrong in that recollection as the S.’s visited again.
• E.M. said she received treats from Ms. R. during her disclosure, a matter about which Ms. R. had no recollection.
• E.M. was wrong about the time of year that the S.’s visited. [15]
• E.M. said that S.S. slept on the first floor when he and his wife slept in A.’s room.
• E.M.’s estimates relating to time were inconsistent with the evidence of the two adults.
• Her evidence could not be correct given all the events she alleged she experienced.
• The unreliability of her perception of time was demonstrated by her evidence that her parents came home some hours after she said that S.S. left her room.
• Her recollection of the particulars of the “game” was poor; she couldn’t remember very much about it and effectively nothing about the second and third versions that she said occurred.
• She testified that she barely remembers the day.
• E.M. admitted to having a very active imagination. [16]
• Her bedroom would have been too dark to be read to without a light on in that room.
• Counsel contended that what he called “the mechanics” of her evidence about the game made no sense such that events could not have occurred in the manner she testified to.

[160] Mr. Ponnampalam then turned to respond to the Crown’s suggestion that the failure of S.S. to make return visits to E.M.’s home after June of 2015 was a piece of circumstantial evidence demonstrating guilt.

[161] Counsel contended that the Crown’s suggestion to S.S. that he felt guilt and shame for what he had done and so stopped visiting was logically incoherent. That position was contradicted by the very fact that S.S. did visit again in June. [17] Moreover, E.M.’s mother relied on her sister’s, admittedly hearsay, information that her husband wasn’t coming to Hamilton due to conflicts in his family.

[162] Mr. Ponnampalam’s summary submission was that due to the credible evidence of S.S. and due to the lack of clarity in the evidence of the complainant, including her memory issues, her confusion about facts and the multiple errors exhibited in her evidence that the Crown had failed in their burden of proof; that all of those thing are “fatal to the Crown’s case.”

The Crown’s Submissions

[163] While the court can accept some, all or none of the testimony of a witness, Ms. Flynn characterized S.S.’s evidence about staying outside as a critical point that went to the heart of his defence.

[164] Ms. Flynn submitted that M.C.’s evidence did not corroborate S.S.’s evidence. She contended that M.C.’s evidence in chief, (that S.S. was on the couch watching tv both when she and her sister left and when they returned), was not modified during her cross-examination. Ms. Flynn submitted that M.C. did not resile from her statement that S.S. was on the couch watching tv when she left. Further, the Crown submitted that the witness never accepted the suggestion that he was outside.

[165] The Crown submitted that as this was one of the mainstays of his evidence, (my term not the Crown’s), and as it was contradicted by M.C. [18] this was one of several reasons to reject S.S.’s evidence. That sequence of cross-examination is set out at paragraph [113].

[166] Additionally, the Crown submitted that there was no ring of truth to his evidence, since it was March and 11:00 p.m. and since he was only wearing a hoody, it cannot be true that S.S. remained outside for the 30 minutes that the sisters were gone. Equally, his evidence that once they returned, with coffee and Eddy, that the four of them stayed outside for another 30 minutes or more is equally incredible.

[167] When this submission was being offered, I interjected to observe that, in the absence of evidence about the actual temperature at that time, the force of that submission was considerably diminished. In addition, I noted that there was nothing to gainsay that S.S. was a very heavy, two-pack-a-day, smoker.

[168] Clearly, there are aspects of S.S.’s evidence that were not put to M.C.: viz. (i) that the L.’s did not have a car at that time; (ii) that the sisters left not only to get coffee but to pick up Eddy; (ii) that when they returned the four adults remained outside and socialized for another 30 or more minutes; (iv) that upon going into the house the S.’s went up bed.

[169] Given S.S.’s plea of not guilty, the question of whether those suggestions ought to have been put to M.C. in cross-examination and, if so, what remedy or consequence should flow from the failure to do so will be discussed under the heading Browne v. Dunn later in these reasons. Part of those considerations, if the rule was breached , include the fact that the Crown did not seek to call any evidence in reply and did not seek to have M.C. recalled on those points or to call Eddy.

[170] In the Crown’s view, the conflict in the evidence about whether the donut incident described by E.M. occurred or not is a peripheral detail of minimal significance.

[171] Moving more specifically to the required W.D. analysis, Ms. Flynn submitted that the manner in which S.S. testified can and should factor into whether his evidence was credible. In the Crown’s submission, I ought to reject his evidence because he was evasive in his responses to her questions in several areas. Foremost, Ms. Flynn submitted that he was evasive on the specific question of whether E.M. was in his care.

[172] She contended that after multiple questions she was required to suggest to him that he would have gone in to rescue E.M. from a burning house and “only then” did he accept that E.M. was in his care. In the Crown’s view, that sequence of questions and answers, (at paragraph [140]), demonstrates an evasiveness that ought to cause the court to reject his evidence.

[172] On another issue that Ms. Flynn conceded was less significant, she contended that it took her three or four questions to get S.S. to admit that his Monster Energy Drink was an energy drink. I have not detailed that exchange because it was neither significant nor did S.S.’s answers evince evasiveness.

[173] Ms. Flynn readily acknowledged that not getting the answer a questioner wants does not demonstrate evasiveness. Still, she urged that looking at S.S.’s evidence as a whole demonstrated a number of areas where he was evasive. She contended that another example concerned the frequency of his visits. Like the Crown’s energy drink submission, in my view there is nothing to the Crown’s submission regarding the number of times S.S. visited and met E.M.. His evidence was not evasive in either area.

[174] The Crown’s last substantive submission respecting S.S.’s evidence dealt with the fact that S.S. did not visit the L.’s after his visit in June of 2015. Ms. Flynn maintained that his explanation for not visiting after June 2015 was not satisfactory and was a piece of after-the-fact conduct demonstrating shame and therefore circumstantial evidence of his guilt.

[175] Since the Crown’s theory that this lack of visitation was a manifestation of guilt and shame for committing the crimes alleged, I asked Madam Crown why that guilt or shame wasn’t strongest right afterward; why the fact of his visit in June didn’t undercut her submission?

[176] Ms. Flynn asserted that his feeling of guilt and shame would have been highest in June because: (i) E.M. made no immediate disclosure; (ii) he was able to eat donuts with her the next morning without issue; (iii) so he tried coming to visit again in June. But, (iv) he came to realize that he just couldn’t bear to look at her any longer. She hypothesized – I would say speculated – that when he saw E.M. playing with his stepdaughter, F., his feelings of guilt overwhelmed him, and he never returned. I don’t accept these submissions. In my view they are purely speculative.

[177] This is particularly seen in that the Crown conceded S.S.’s evidence about not travelling in order to concentrate on his son, Tr. was not unreasonable. But, Ms. Flynn said that excuse ended in June of 2016 and does not explain why he did not visit the L.’s in person between June of 2016 and December of 2018 when he was charged, so that gap in visitation remains a convincing piece of after-the-fact conduct evincing guilt, in the Crown’s submission.

[178] In my view there are several problems with that position, not the least of which is that the Crown objected to the defence being permitted, in re-examination, to elicit further evidence in the area. In addition, the Crown’s submission assumes that once some sort of visitation pattern was established, even after the hiatus of one year, that pattern must be reestablished and that the only explanation for not resuming that pattern must be a guilty conscience. In my view, the Crown’s submission presumes guilt. In that regard I make the following observation.

[178] In sexual assault cases it is an error to find against the credibility of a complainant who doesn’t disassociate from an abuser, an error identified and cautioned against in R. v. A.R.J.D., [2018] S.C.J. No. 6:

1 The appellant was acquitted at trial of three sexual offences alleged to have been committed against his stepdaughter when she was between the ages of 11 and 16. A majority of the Court of Appeal of Alberta allowed the Crown's appeal. The appellant now appeals to this Court as of right.

2 We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant's avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant's credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. …

[179] The Crown’s submission is the inverse of A.R. J.D. and equally erroneous.

[180] One further point is the evidence of M.C. who testified that her sister told her that S.S. stopped coming to Hamilton because of troubles he was having with his side of their families. While that information is clearly hearsay M.C.’s reaction to it is noteworthy. She, apparently, did not find this interruption in S.S.’s visits to be unusual or a matter of concern.

[181] Turning to the final branch of the W.D. analysis, Ms. Flynn made the following submissions. The defence did not suggest to E.M. or argue to the court that she was intentionally lying. At worst, the defence suggested that she has confused a video she watched for the memories she testified to. But, when that suggestion was put to E.M. she firmly rejected it.

[182] Ms. Flynn submitted that the defence’s contention that E.M.’s evidence was unreliable was misplaced as being contrary to the law developed by the Supreme Court of Canada and that no reasonable doubt about S.S.’s guilt could arise based upon those defence submissions.

[183] Counsel urged that E.M.’s evidence should not be found to be unreliable based upon her perceptions of time, given her age when the events occurred and given her age when she testified. This is especially so since what she says occurred could easily fit within the half hour or so that both adults say was available to S.S.

[184] Moreover, the Crown asserts that E.M.’s account makes complete sense and that account is not marred by what the defence characterized as “mechanical” issues. Ms. Flynn said that S.S. was hiding the dolls in front of him to play this ‘guess the doll game’. Respectfully, that was not E.M.’s evidence.

[185] Further, Ms. Flynn said that E.M. had her hand out and that S.S. put the dolls into her hand and that’s the game and the game progressed.

[186] Ms. Flynn said that in her evidence E.M. demonstrated reaching around in front of S.S. and reaching toward the area of his crotch. Respectfully, I saw no such demonstration or action acted out during E.M.’s evidence.

[187] The Crown urged that E.M.’s evidence of this sexual game had the hallmarks of truth, morphing from something benign into a sexual game, a game he explained how to play to E.M. Having explained the game, he went and obtained the dolls. It was S.S.’s idea to play the game and he told her the rules.

[188] I have difficulty accepting E.M.’s evidence. Presumably, I am to infer that S.S. said something like this to E.M.: “move your right arm out to the side and then bend it and bring it around my body and take hold of whatever your hand comes into contact with.” I say that I must infer some sort of instruction like that because E.M. could not tell me how she came to touch what she said was S.S.’s penis. She could not say what he said that would allow her to take hold of his penis given the configuration that she said they were in, with both of them facing in the same direction and her behind him to some extent.

[189] Was she tall enough so that her arms were long enough to do that? Was she a few inches behind him or a few feet? I do not know. E.M. did not say any part of her body was touching any part of his. She did say that her uncle never touched her arm, that he didn’t place her hand on his penis. She did not say that she felt or touched any part of her uncle’s body other than having her hand on his penis. Given her age and therefore her size at that time and given the configuration of their bodies, as she described it , that seems extremely unlikely to me.

[190] Beyond my concerns about the “mechanics” of the events described by E.M., the Crown’s position is that the various contradictions or errors in E.M.’s evidence are of no consequence with respect to the reliability of her evidence. Specifically, the Crown’s position is that whether her father was home or not, whether she was in grade six or seven, whether it was summertime, whether she was given a snack during her disclosure and the number of times that the S.’s visited the […] Street townhouse are all peripheral details of no moment that do not and cannot impinge on her reliability.

[191] I accept much but not all of that submission. In my view the fact that E.M. testified that she was certain that her father was home and that she hugged him goodnight is a serious error in her evidence. She testified with certainty to something that did not and could not have occurred.

[192] Clearly not all inconsistencies need to be resolved but, as Justice Watt explained in R. v. M. (A.), [2014] O.J. No. 5241 (C.A.):

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.) , at p. 354.

14 … A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v . M. (R.E.), [2008] 3 S.C.R. 3, at para. 64 . That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.) , at p. 356; R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 31 .

[193] Ms. Flynn also disagreed with the defence position that E.M. could not remember a lot about the game she described. That, the Crown submitted, was wrong and “absolutely not true.” In Ms. Flynn’s submission E.M. described and demonstrated the game including where they were, how they were standing and the positions of their bodies. The Crown contends that none of that detracts from the reliability of E.M.’s evidence.

[194] Moreover, E.M. had no motive to fabricate her complaint. There is nothing in the evidence to suggest or support any underlying reason for E.M. to have made her disclosure.

[195] In the same vein, referring to the teaching from D.D. , the fact that E.M. delayed her disclosure is not legally significant and does not detract from the force of E.M.’s evidence.

[196] Ms. Flynn then turned to observe that the defence raised no inconsistencies in the narrative of E.M.’s disclosure; that the defence did not point to anything inconsistent in her disclosure among what she allegedly told a school friend on the same day that she disclosed to Ms. R. and then to her public school principal.

[197] On receiving this submission I asked Ms. Flynn if she was asking me to infer that E.M. was consistent in making these prior statements. Madam Crown said that her point was that, given the contradictions in E.M.’s evidence referred to by the defence, I was being urged to accept her evidence because ‘what is normally considered in assessing credibility is whether their evidence has been shown to be inconsistent in relating the same event in the past and there have been no inconsistencies shown.’

[198] The defence position was that E.M.’s evidence was inconsistent with her mother’s evidence and with S.S.’s. I advised the Crown that I did not agree that I could make weight from or draw an inference in favour of E.M.’s credibility because she was apparently or presumably consistent in prior recitals of her complaint.

[199] While I did not know what E.M. said in these prior recitals, since they were not in evidence, it seems clear to me that a prior consistent statement, in the circumstances of this case, was of no relevance.

[200] Having difficulty appreciating Ms. Flynn’s point I asked if she was saying that because the defence did not seek to demonstrate prior inconsistencies in E.M.’s disclosure that I should find she was consistent and that should increase her credibility?

[201] Ms. Flynn submitted that her simple point was that there is an absence of that factor, (i.e, any prior inconsistencies in E.M.’s disclosure narrative). Regrettably, I am not sure that I have this point even now, as neither the Crown nor the defence sought to elicit any particulars of the narrative of E.M.’s complaint. However, this submission appears to be that I should observe, (and presumably infer), that inconsistencies in the narrative or disclosure are not present in this case; that there was no challenge to E.M.’s credibility or reliability because of what she said in the past to others since the defence did not suggest she told it inconsistently on any of those occasions.

[202] The Crown also urged that E.M.’s demeanour when testifying supported her credibility. As I noted earlier in these reasons, (while E.M. seemed charming at times), she was often flippant.

[203] Ms. Flynn then submitted that E.M.’s very specific and detailed description of an erect penis tolled the ring of truth; i.e., that she initially thought the thing she was holding was something rubber-like and that it curved up to the ceiling and was skin-like in colour.

[204] In the Crown’s submission E.M. was still very much a child, not a typical teenager, something that the Crown submitted was evident from her manner in testifying. Given that, her description of an erection would be a description of something unknown to her. It was a comment out the mouth of a babe, with supports the credibility of her recollections.

[205] The problem with this submission is that neither side sought to elicit the extent of E.M.’s knowledge of human biology or sexual reproduction. I have previously commented on her flippant manner of testifying. I do not agree that E.M. was child-like. She had a very sophisticated vocabulary, using words like “giddy”, “texture”, and “betrayed” properly, as well as having a good command of idiomatic English. While she may have been shy about using appropriate anatomical names, once given permission to quote a profanity that she heard, she said “mother-fucker” with relish. That she has difficulty with left and right and was therefore not able to provide a useful layout of her room is not the equivalent of being child-like.

[206] Moreover, E.M. admitted to watching a YouTube video about child sexual assault. I find nothing surprising about a 14-year-old girl, who turns 15 in […], being able to describe an erection.

The Reply Submissions of the Defence

[207] Mr. Ponnampalam made brief submissions in reply. He submitted E.M.’s description of the thing that she said she held in her hand in the game was unreliable given that when asked how big the item she held was, her answer was “I don’t remember.” When asked how far away from her uncle’s body it was, she said, “I don’t know.” When asked where the item was, she said that it was above her uncle’s crotch.

[208] Counsel submitted S.S. was not evasive. Rather, he was straight-forward in his responses. His testimony about smoking outside the townhome being a common occurrence was corroborated by M.C.’s testimony.

[209] Finally, Mr. Ponnampalam concluded by referencing M.C.’s evidence about where S.S. was at her leaving and returning and contended that her evidence was not inconsistent with S.S.’s evidence.

Credibility and Reliability

[210] R. v. Morrissey, [1995] O.J. No. 639 (C.A.) at paragraph [33] provides a foundational discussion of the concepts of credibility and reliability and their relationship.

33 Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony . Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable

[211] In R. v. Ramos, [2020] M.J. No. 266 (C.A.), [leave to appeal dismissed without written reasons at [2021] SCC 15], Chief Justice Mainella, at paragraph [8], characterized the key arguments in that appeal as the plausibility of the accused’s denials and the frailties of the complainant’s evidence. To a large extent, the same characterization can be applied to the evidence at this trial. As noted previously, the defence did not attack E.M.’s credibility. Rather, the defence contended that E.M. was an unreliable witness, while the Crown contended S.S.’s evidence was implausible and ought to be rejected both for what he said and how he said it.

Some Principles Dealing with Demeanour [19]

[212] The demeanour of an accused while testifying in a criminal trial can vary enormously due to any number of factors. Judges have repeatedly been warned against attempting to link credibility with a subjective judicial assessment of demeanour. (See, for example R. v. T.E., 2007 ONCA 891 at para. [4] .)

[213] That said, a court need not ignore the question of demeanour. As the Court of Appeal stated in R. v. Boyce, [2005] O.J. No. 4313 at para. [3] : “trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial.” In R. v. Santhosh, 2016 ONCA 731 at para. [19] the Court of Appeal confirmed that “ a trial judge may assess a witness’ demeanour, which, while relevant to the assessment of credibility, is not determinative of the witness’ credibility and must not be overemphasized.”

[214] Moreover, as noted in R. v. J.A., 2010 ONCA 491 at para. [16] , it is not inappropriate to assess and weigh evidence relating to the post-event emotional state of a complainant. That type of evidence was described by the Ontario court of Appeal R. v. Varcoe (2007), 219 C.C.C. (3d) 397, at para. 33 : K.F.’s emotional upset was manifest the day following the assault; it was apparent to and noted by her family. Such evidence is admissible and may be used to support a complainant’s evidence of a sexual assault. See R. v. Boss (1988), 46 C.C.C. (3d) 523 (Ont. C.A.). The weight to be given this properly admissible evidence was exclusively a matter for the trial judge’s discretion.

[215] I have noted aspects of the way E.M. testified, previously. So far as S.S. is concerned, he gave his evidence calmly and responsively. My judgment in this case does not turn on the demeanour of either of them. My reference to E.M.’s manner of testifying was directed to my rejection of the Crown’s submission that E.M. was child-like.

R. v. W.(D.), [1991] 1 S.C.R. 742

[216] Judges have been warned against the mere repetition of the W.D. analysis and I charge myself against merely giving lip-service to it. I am duty bound to comply with the substance of the following direction found at p. 758 of the report:

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.

The Evidence of Children

[218] The Supreme Court of Canada has, on several occasions, provided guidance and direction on how the evidence of children should be approached and on the issue of delayed disclosure. I begin with the later from R. v. D.D., [2000] S.C.J. 44 (SCC) at paragraph [65] :

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[219] Moreover, I must be mindful of the reality that inconsistencies in a child's evidence may be of less importance in assessing credibility than in the case of a reasonable adult. As explained in R. v. B. (G.), [1990] 2 S.C.R. 30

48 … 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. … 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.

[220] In R. v. W. (R.) (2000), 74 C.C.C. (3d) 134 (S.C.C.) Justice McLachlin , (as she then was), provided an extensive lesson on how to assess the evidence of children, in particular, and more generally, any witness’ evidence:

23 … I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: … The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

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, …

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 anew 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. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[221] On the foregoing basis, despite testifying as a young teenager, E.M. was relating events that she said occurred when she was eight. Accordingly, the fact that she thought she lived on the Hamilton mountain rather than […] Street is the kind of inconsistency as to location that should be considered in the context of her age at the time of the events to which she was testifying. Likewise, E.M.’s subjective perception of the time it took before her mother returned home is not a matter of significance. Nonetheless, as noted by Justice Mc McLachlin “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.” The same point was stressed by Justice Watt in R. v. K.S., 2017 ONCA 307.

The Requirement for Proof to the Exclusion of Any Reasonable Doubt

[222] In R. v. K.S., 2017 ONCA 307 Justice Watt wrote:

9 The trial judge's reasons accurately record the principles that govern the assessment of the evidence of child witnesses. They reveal the need for a common sense approach and disclose no hint that the trial judge considered the complainant's evidence inherently unreliable on account of her age. Nothing the trial judge said or failed to say after her statement of those principles revealed any departure from their teachings in her subsequent analysis.

10 The trial judge also reminded herself that this common sense approach to the evidence of children does not mean that their evidence is not subject to the same standard of proof as the testimony of adult witnesses in criminal cases. A verdict of guilt requires a solid foundation whether its evidentiary support resides in the testimony of a child, of an adult, or of some combination of the two. That a child is the principal or sole support for the Crown's case does not lessen the standard of proof required to establish guilt.

[223] One further matter that bears mention is that while E.M. testified that she barely remembered the day and agreed in cross-examination that she said something similar when interviewed by the police, those comments are not necessarily controlling. It is her evidence that needs to be considered.

Motive

[224] In R. v. L.L., [2009] O.J. No. 2029 (Ont. C.A.) at [19] the court held that evidence suggesting the absence of any reason to make a false allegation “is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility” referring to R. v. Batte (2000), 49 O.R. (3d) 321 (Ont. C.A.) at [120]: Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness' credibility

[225] That noted I must caution myself at directed by the Court of Appeal in R. v. M. B., 2011 ONCA 76, at [32] that because a person's motives can sometimes be hidden, there is a difference between absence of apparent motive and proven absence of motive. Further, although absence of apparent motive to fabricate is a proper factor to consider in assessing the credibility of the complainant, it is but one of many factors to be considered; and, it was essential to bear in mind that the accused has no obligation to prove a motive to fabricate and that the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt.

[226] The difficult issue of motive was recently discussed by Justice Nordheimer in R. v. Dindyal, [2021] O.J. No. 1931 in these terms:

21 … I begin with the error that infected the trial judge's approach to all of the counts and that is his credibility finding with respect to the complainant, i.e., the no motive to fabricate conclusion.

22 This court has explained, on a number of occasions, the permissible and impermissible use of evidence, or the absence of evidence, relating to motive. Most recently in R. v. Ignacio, 2021 ONCA 69, at paras. 37-60 , leave to appeal to S.C.C. requested, 39552, Pepall J.A. reviewed the authorities on this subject. Included in those authorities is the central point made by Doherty J.A. in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121 : What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth . The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [Emphasis added].

23 The trial judge found that the complainant had "no reason to lie, to fabricate or to embellish the accusations against [the appellant]." But the evidence does not support that finding. The trial judge appears to have conflated the absence of evidence of a motive to fabricate with a proven lack of motive, contrary to Batte . This is a significant error. A proven lack of motive can be a compelling factor in a credibility assessment. However, the mere absence of any evidence of a motive to fabricate is only one of many factors to be considered in a credibility assessment. It alone cannot serve as the foundation of the credibility assessment.

24 In my view, the trial judge impermissibly used the absence of any evidence of a motive to fabricate as if it had been proven that the complainant had no motive to fabricate, in coming to his credibility conclusion regarding the complainant. Rather than consider it as a factor, the trial judge clearly used it to conclude that the complainant must be telling the truth, contrary to the admonition I have just set out above.

Browne v. Dunn (1893), 6 R. 67 (H.L.) .

[227] R. v. Powell, 2021 ONCA 271 at paragraph [76] explains that the “ rule in Browne v. Dunn is a rule of trial fairness that applies where a cross-examiner intends to impeach a witness with contradictory evidence on a matter of substance. It is meant to ensure that the witness is given a fair opportunity to challenge contradictory evidence that the witness might have been able to explain away: R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191 , at paras. 75 , 81.

[228] Nonetheless as noted in R. v. Kirlew, 2017 ONCA 171 at paragraph [9] :

9 … this is neither a fixed nor inflexible rule. As this court recently explained in R. v. Quansah, 2015 ONCA 237, 331 O.A.C. 304 , at para. 80 , the extent of the application of the rule "lies within the sound discretion of the trial judge and depends on the circumstances of each case" (citations omitted). Further, and importantly, compliance with the rule requires that "the cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted" (emphasis in original, citations omitted).

[229] In my view it would have been better had defence counsel suggested to M.C. that the L.’s had no car and that she and her sister were going to pick up Eddy as well as getting coffee. However, the essence of the defence was a denial and the fact that S.S. was left alone with E.M. did not change regardless of where the sisters went. Significantly, M.C. was cross-examined on where and when S.S. was when she left and when she returned. Moreover, the Crown was free to seek to call reply evidence on these points, though it did not do so.

[230] Rather, Ms. Flynn urged that, pursuant to R. v. Podokski, 2018 BCCA 96, I ought to give less credit to S.S.’s evidence about where he was and when and more credit to M.C.’s on these points. Assuming that there was a breach of the rule I elect not to accept the Crown’s invitation do so because M.C. was admittedly unsure of where the accused was and when.

Discussion and Decision

[231] I begin by stating the obvious, that the issue before me is not a credibility contest. The issue to be decided is not simply who do I believe or even whose evidence do I prefer. This is a criminal prosecution. The onus of proof lies solely on the Crown to prove the guilt of the accused to the requisite burden, namely: to the exclusion of any reasonable doubt. This onus of proof never shifts from the Crown to the defence. There is no burden on the accused to prove anything. S.S. is presumed innocent and he is entitled to the benefit of that presumption of innocence unless and until that presumption of innocence is displaced by admissible evidence that proves his guilt to the exclusion of any reasonable doubt.

Avoiding a Forbidden Line of Reasoning

[232] In R. v. Y.M., [2004] O.J. No. 2001 (C.A.) Laskin J.A. identified an erroneous approach to cases where the credibility of the witnesses is starkly conflicted. Justice Laskin found that the trial judge in Y.M. may have engaged in the following forbidden reasoning: ‘I accept the evidence of the complainant; the appellant's evidence differs from the complainant's evidence on material matters; therefore I do not believe the appellant's evidence.’ Justice Laskin went on to explain that this reasoning is forbidden because it appears to shift the burden of proof onto the appellant to explain away the complainant's evidence.

[233] While it is trite that trial judges are not required to apply W.D. in the order prescribed in that case, when assessing credibility trial judges should reflect its underlying principles.

[234] What is particularly apposite in this trial is the middle ground of W.D. That is, whether the defence evidence in the context of the evidence, as a whole, leaves the trier of fact with a reasonable doubt.

[235] Rosenberg J.A. discussed this point in R. v. Minuskin, [2003] O.J. No. 5253 (C.A.) at paragraph [22] where he said: It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 743, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

[236] Accordingly, I charge myself in accordance with these governing principles.

[237] Additionally I am familiar with and have considered the principles explained in R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.), R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.), [20] R. v. H.C., [2009] O.J. No. 214 (C.A.), R. v. Hull, [2006] O.J. No. 3177 (C.A.), R. v. G.C., [2006] O.J. No. 2245 (C.A.), and R. v. Holley, [2007] O.J. No. 3871 (C.A.).

[237] At paragraph [5] of Hull , the Court of Appeal clarified and reconciled the Y.M. principle with Jaura and J.J.R.D . in the following words: W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused .

[238] Another example of merely preferring a complainant’s evidence and therefore erroneously rejecting an accused’s evidence can be found in R. v. Wills, 2016 ONCA 965, where at paragraph [15] the Court explained that t he “ reasoned acceptance of a complainant’s evidence” that would justify the rejection of the evidence of an accused must occur in the context of a proper consideration of the whole of the evidence.

[239] Many controlling decisions have stressed that it must be a reasoned acceptance of the complaint’s evidence. For example, in R. v. D.(R.), 2016 ONCA 574 at paragraphs [19] and [20] , Laskin J.A. noted : In J.J.R.D. … [t]he accused's denial in that case, when "stacked beside" the complainant's evidence and her diary entries, "did not leave the trial judge with a reasonable doubt." And so Doherty J.A. explained that "an outright rejection of an accused's evidence" may be "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence ..." (emphasis added). In doing so, he addressed the need for the trial judge to be convinced that the conflicting credible evidence established the accused's guilt beyond a reasonable doubt.

[240] This then is the legal framework within which to consider whether the Crown has met it onus and burden of proof.

[241] On the evidence adduced, the Crown has failed to do so. I find S.S. not guilty on all counts and the charges against him are dismissed.

[242] While I tend to believe S.S.’s evidence, I need not conclude that I accept it. But I emphatically do not reject it and so I have a reasonable doubt about his guilt.

[243] I found S.S.’s evidence to be reasonable. It was internally consistent and not inconsistent with the evidence of M.C. I disagree with the Crown’s submissions, (at paragraph [164]), that M.C. did not deviate from her evidence in-chief about where S.S. was both on her leaving and on her return. Equally, I do not accept that S.S. was evasive during his cross-examination. In addition, I do not find that his failure to resume visiting the L.’s after the end of the 2016 school year to be circumstantial evidence of guilt.

[243] In my view there was nothing about the content of his evidence that was unreasonable or improbable. While his evidence was contradicted by E.M.’s evidence, her version of the events was not something that causes me to reject his evidence, even assessing and considering it in the manner directed by the Supreme Court of Canada.

[244] I find that the Crown’s case founders on the second branch of W.D. Despite that conclusion I intend to set down some of the reasons why I am unable to arrive at a reasoned acceptance of a complainant’s evidence, in the context of a proper consideration of the whole of the evidence that would justify the rejection of the evidence of S.S.

[245] I do not offer these reasons, observations or concerns about E.M.’s evidence in a ranked order. Some of them are more significant than others. I am simply trying to “verbalize” why her evidence, when considered against the whole of the evidence does not cause me to reject S.S.’s evidence and why her evidence does not convince me to the exclusion of any reasonable doubt that S.S. is guilty of the allegations made of by her.

[246] E.M. testified that she was dressed and downstairs when the S.’s arrived. M.C. said her daughter was upstairs in bed and ostensibly sleeping at that time. In addition, E.M. said that she was certain that her father was home and that she hugged him before going up to bed, yet her father was at work so that these aspects of her testimony were clearly wrong and yet relate to the same evening of her allegations.

[247] The point is that she testified to a number of specific details of that night that did not and could not have happened.

[248] Of lesser significance but still notable is the fact that she said her parents went out and would not tell her where they were going. But M.C. said that when she put E.M. to bed, she told her that she would be going out for coffee with Aunt T.

[249] E.M. said that her stepsister, A., and her boyfriend, M., were out somewhere. Again, M.C. testified to the effect that M. did not live with them yet at the […] Street townhouse.

[250] In my view E.M. was quite suggestible. She clearly said and demonstrated that in her recollection she was standing about two feet behind S.S.’s back during the game she described. She changed that estimation to two inches after hearing Ms. Flynn suggest that that was the distance E.M. had been describing. However, as I noted during my review of E.M.’s evidence, that was not what E.M. demonstrated until Ms. Flynn interjected.

[251] Irrespective of the distance, as I explained while reviewing her testimony, her description of the event was improbable. It is unlikely that it could have happened as she described it, in my view, without a great deal of other contact between her body and her uncle’s body yet she did not say or attempt to describe any such incidental contact.

[252] Briefly put then, the content of E.M.’s evidence does not permit me to be satisfied to the exclusion of any reasonable doubt about the guilt of the accused, in the face of his evidence when his evidence is considered in its totality in light of the rest of the evidence.

[253] As Justice Cromwell noted in R. v J.M.H., [2011] S.C.J. No. 45, at paragraph [39] , a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt . In this case I have a reasonable doubt about the guilt of S.S. based upon his evidence, as I do not reject his denial of culpability. (emphasis added)

Dated at Hamilton this 25 th day of May 2021

Footnotes

[1] M.C. is E.M.’s stepmother. She stands as mother to E.M. so I shall simply refer to her as E.M.’s mother.

[2] The date of this disclosure was not precisely identified. The teacher, Ms. R., provided a statement to the police on February 19, 2019.

[3] “I kinda like math but not really cuz screw math, {laughs}, does lunch count as a subject?”

[4] “Oh right, my sister and her boyfriend M. lived with me, I completely forgot. I am so sorry.”

[5] These are merely a few of the examples of E.M.’s relaxed manner of answering. Another example occurred when Ms. Flynn asked Q: Did you wake up the next morning? And E.M. replied, A: If I didn’t, I’d be dead, and I am right here.

[6] She also called it a “Captain Falcon punch”. Presumably Captain Falcon is some sort of super-hero character but neither counsel asked any questions about who or what Captain Falcon was.

[7] That is to say, the light was on in the hallway.

[8] The point being that the lack of light to enable one to read in those conditions makes E.M.’s recollection of being read to improbable.

[9] Like other passages reproduced earlier in these reasons, this “transcript” was created by me by listening to the digital recording of the evidence. I am not a certified transcriptionist but have done my best to be accurate.

[10] As I initially heard this testimony and as I listened to it subsequently, it was clear to me that M.C. was implying or at a minimum conceding that S.S. may have been in the backyard. As she trailed off saying “but …” she was implying any one of the following: but I could be wrong; but he may have been; but I really don’t know; but I don’t remember; but I can’t say for sure; etc. etc.

[11] M.C. said that their townhouse was at […] Street, near the intersection of […] Street and Q[…] Road in Hamilton. She identified the Tim Horton’s store that they went to as being opposite a hospital, (the municipal address of which is 2757 King St. E.), near Centennial Parkway. Neither counsel led any evidence about the actual distance between the L. townhouse and that Tim’s outlet. Likewise, no evidence was led about the location where E.M.’s father worked. The point being that it is difficult to assess the accuracy of the travel times that might be needed to go to and from the Tim’s location or to and from the townhouse to E.M.’s father’s place of employment and then to the Tim’s location and then to return to the townhouse.

[12] Their children lived or were living with their ex-spouses at that time.

[13] S.S. demurred slightly here saying that a coffee run was a regular thing.

[14] My observation, not counsel’s submission.

[15] This is an insignificant matter but might indicate that E.M. has conflated the two visits into one, as the second visit in June could properly be called a summertime visit.

[16] That admission is of no significance. The defence never suggested to E.M. that she had imagined her recollection. The only submission in this vein was the suggestion, not accepted by E.M., that she’d mistaken something she saw on YouTube and confused that video with and for her current memories.

[17] Mr. Ponnampalam sought to re-examine S.S. about other reasons beyond his son’s issues that may have contributed to him not visiting the L.’s after June of 2015. Ms. Flynn objected to his doing so. I upheld her objection, as a more fulsome account of his reasons for not visiting could have been proffered in-chief. Nonetheless, it seems to me to be somewhat inconsistent for the Crown to suggest S.S.’s explanation was insufficient to account for all the years between 2016 and 2018 when she objected to it being proffered.

[18] Ms. Flynn did not have ready access to the digital recording of S.S.’s evidence. Rather, she relied upon her notes of the evidence for these submissions.

[19] I have lifted these paragraphs on demeanour from a prior judgment, as I see no need to “reinvent the wheel.”

[20] Leave to appeal refused, [2007] SCCA No. 69