WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: January 27, 2022 COURT FILE No.: 21-0696
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
P.F.
Before: Justice Robert S. Gee Heard on: October 19, 2021 and December 7, 2021 Reasons for Judgment released on: January 27, 2022
Counsel: Anthony Minelli, counsel for the Crown Alexandra Pester, for the defendant
Gee J.:
INTRODUCTION
[1] The accused, P.F. is the stepfather to the complainant, E.G. On two separate occasions in January 2021, the complainant alleged the accused touched her in a sexual manner. As a result, the accused is facing three charges. From the first incident he is charged with invitation to sexual touching that is alleged to have occurred between January 17 and 23, 2021. From the second incident he is facing charges of sexual assault and sexual interference which is alleged to have occurred on January 28, 2021.
[2] The Crown proceeded summarily and called four witnesses; the complainant, her mother K.G., and two police officers, Janisse Leclair and Tyler Sayles. The accused testified for the defence.
[3] The complainant was 9 years old at the time of the incidents and 10 when she testified at trial. The accused and the complainant’s mother had been in a relationship of several years’ duration. The accused and K.G. had two children together while the complainant is K.G.’s daughter from a prior relationship. The five of them, along with the accused’s mother, were living together in Brantford as a family at the time the allegations arose.
[4] Even though I found the complainant to be an intelligent, articulate and credible witness, for reasons that will be further explained below, I have found the Crown has failed to prove these allegations beyond a reasonable doubt and the charges against the accused will be dismissed.
THE ALLEGATIONS
[5] The allegations are not complicated and relatively straightforward. There are two separate incidents that are alleged to have occurred about 5 to 10 days apart. The first is alleged to have occurred in the bedroom of the complainant’s younger brother. There are a number of fish tanks in the house, including one in the younger brother’s bedroom.
[6] On this occasion, the accused was cleaning the younger brother’s fish tank and was being assisted by the complainant. While they were alone in the room, the complainant alleges the accused took her hand and put it down the front of his pants. She said her hand was over the top of the accused’s underwear and was not in direct contact with his body.
[7] The second incident is said to have occurred on the evening of January 28, 2021. K.G. had put the complainant and her siblings to bed. Not long after, the accused returned home from work. When he returned home late like this, after the kids had gone to bed, it was not uncommon for him to go to their bedrooms to say goodnight to them. This is what he is alleged to have done this night.
[8] The bedrooms of the complainant and her younger brother were in the basement of the house. The complainant heard the accused come home from work and not long after, come downstairs. He first went to say goodnight to her younger brother and then came into her room. She said she was propped up on her bed watching something on her tablet. The accused came over and put his hand down her pants and inserted his finger into her vagina. This lasted for a couple minutes and he said goodnight to her and left.
[9] After the accused left, the complainant sent her mother a message from her tablet that she had something to tell her. When she received this message, K.G. went downstairs and found the complainant upset and crying and she disclosed to her what she alleged the accused just did. K.G. stayed with her and contacted her sister who also came over and went directly to the complainant’s bedroom.
[10] K.G. and her sister then went back upstairs and confronted the accused. He denied the allegations and when K.G. said she was going to call police, things became heated and voices were raised. The police attended that night. Officer Sayles first located the accused in a bedroom. He stated the accused appeared to be confused and in a panicked state. The accused told him he had been confronted by K.G. and her sister but had no idea where these allegations were coming from. Later, after obtaining more information regarding the allegations, Officer Sayles arrested the accused on these charges.
APPLICABLE LEGAL PRINCIPLES
[11] In order to secure a conviction in this case, the Crown needs to prove beyond a reasonable doubt that the complainant‘s version is what occurred. This means my assessment of the credibility and reliability of the evidence of the witnesses will be determinative of the outcome of the case. If I am convinced by the evidence of the complainant, then findings of guilt, are inevitable. On the other hand, if I were to believe the evidence of the accused, or if not believed, still have it leave me in a state of doubt, I would have to conclude the Crown has not proven the case and, acquit the accused.
[12] Making and articulating credibility findings is often the most challenging aspect of a judge’s duty. In addition to any physical or tangible evidence that may be presented there are also many intangibles and other impressions that go into the complex matrix when making credibility assessments. Articulating how these factors lead to a particular credibility finding can be a daunting task. The Supreme Court has recently recognized this in the case of R. v. G.F., 2021 SCC 20, as follows at paragraphs 81 and 82:
As Slatter demonstrates, a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.
Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.
[13] This case is no different. Like noted above, both incidents took place in private, with only the complainant and the accused present. Even though other witnesses testified, since they were not present when the acts were said to have occurred, the case turns to a significant extent, on the assessment of the evidence of the complainant and the accused.
[14] As well, it should be mentioned, in this case it is the credibility of the witnesses that is germane. There was nothing that I concluded that would have impacted any witnesses’ ability to observe, recall, or recount the events accurately. Put another way, there was nothing that would cause me to believe they were incapable of being reliable witnesses.
[15] Further, it is always necessary to remain vigilant as to the Crown’s burden. In this, as in all cases, the accused is presumed innocent and the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. It is a much higher standard than proof on a balance of probabilities which is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to absolute certainty than to a balance of probabilities. See R. v. Lifchus, [1997] 3 SCR 320.
[16] In R. v. W.D., [1991] 1 S.C.R. 742, the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives different version of events from the complainant or other witnesses.
[17] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not by that fact alone, entitled to win.
[18] As well, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief, to simply conclude the other side’s competing version must be true or accurate.
[19] W.D. suggests that I approach the case in this manner. First, I should ask myself if I believe the accused or any evidence presented at trial that is inconsistent with guilt. If I do, then the accused is entitled to an acquittal.
[20] The second part of the W.D. framework comes into play if I conclude I do not believe the accused or the evidence inconsistent with his guilt. If I do not, in order to remain focused on the Crown’s burden, I should ask if I am still left in a reasonable doubt by it. If I am, the accused is entitled to the benefit of that doubt and is again entitled to an acquittal.
[21] It is only after I have found that I do not believe the accused or the other evidence inconsistent with guilt, and this evidence does not leave me with a reasonable doubt that I should consider the third part of the W.D. framework.
[22] This part of the framework reminds me that even if I have not believed the accused’s evidence and am not left with a reasonable doubt by it, that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I have to be convinced of the accused’s guilt beyond a reasonable doubt based on the evidence I do accept.
[23] More must be said of some of these principles. Starting with W.D., the framework does not require me to assess the accused’s evidence in isolation and to proceed through the three steps in sequence. As Code J. said in R. v. Thomas, 2012 ONSC 6653:
In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.
Mr. Gold’s approach is unworkable in practice. A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.
[24] What Justice Code in Thomas is stressing, is that the evidence of the accused, notwithstanding the wording of the three step process in W.D., is not to be assessed in isolation. The evidence of the accused, and all witnesses for that matter is to be assessed in the context of the evidence as a whole.
APPLYING THE LEGAL PRINCIPLES
[25] As noted earlier, the most important testimony in this case came from the complainant and the accused. The testimony of the other witnesses does not help to a significant degree as to whether the events occurred as alleged. K.G. provides some context to the family dynamics present and mostly assists in understanding how the allegations came to light. She also provided evidence as to the demeanour of the complainant shortly after the second incident which can be some evidence corroborative of the complainant’s allegations. (see: R. v. P.R., 2014 ONCA 131, at paragraph 5 and R. v. A.J., 2010 ONCA 491, paragraphs 19-23, reversed on other grounds 2011 SCC 17, [2011] 1 S.C.R. 628).
[26] K.G. also provided some evidence though of the accused’s reaction when first confronted with the allegations. Since the accused testified, evidence as to what he may have stated immediately upon being confronted with the allegations can also be relevant. (see: R. v. Edgar, 2010 ONCA 529). The accused sought to have his utterances and reaction when confronted admitted at trial on this basis and the Crown acceded to this request. In this regard, the defence points to the accused’s vehement denials to K.G. when initially confronted and apparent confused and panicked appearance along with his claim to not knowing where the allegations were coming from while speaking to Officer Sayles.
[27] In dealing with the evidence of the complainant, I found her to be highly intelligent, articulate, and composed, well beyond her 10 years of age. She gave detailed evidence that for the most part was compelling. Often times, the questions posed to her were vague or confusing. She, however, would always answer them appropriately or ask for clarification. Notwithstanding some confusion or changes on minor points in her testimony, the core of her allegations never changed even under cross examination.
[28] Some focus was placed on her estimation of the amount of time the accused spent downstairs with her during the second incident. The issues were whether he would have been with her for only a minute or two or whether it was five minutes or more. In the end I find nothing turns on this and it was nothing more than an exercise in hair splitting. I find the complainant’s apparent ability to estimate times was as good as any witness, adult witnesses included. In any event, the touching that was alleged to have occurred in this incident and the fish tank incident as well for that matter, were relatively brief and capable of occurring even in the shortest of the timeframes discussed.
[29] The bottom line is the complainant testified in a very believable manner. She was intelligent, articulate, and compelling. Were her evidence to be viewed strictly in isolation, I would not hesitate to accept it and find it capable of belief beyond a reasonable doubt. However, just as I am not to view the accused’s evidence in isolation, I am also not to view the evidence of the complainant in isolation.
[30] This leads me to the evidence of the accused. Like the complainant, I find he also testified very well. He was calm and articulate. He made concessions when it was reasonable to do so and I did not detect any suggestion he was embellishing or was harbouring any malice toward the complainant.
[31] The Crown challenged his evidence in several ways and urged me not to accept it. I did not find any of these challenges to detract from his credibility. For instance, the Crown said he was unsure of two aspects of the second incident that a truthful witness would be sure of. The first was whether he entered the complainant’s bedroom completely and the other was whether he recalled the complainant saying anything to him.
[32] I find again these are minor points and do not have any impact on his overall credibility. In relation to the first issue, I find the accused was consistent in his evidence that he did not enter the complainant’s bedroom but stood at the threshold to the doorway and said goodnight to her. In relation to the second, as I've said I find this a minor point in the context of the allegations and his lack of memory on this is neither concerning nor of importance to my assessment.
[33] The Crown also points to his testimony about the fish tank incident where he says his son, the complainant’s younger brother, always helped with the cleaning of his fish tank. Given this, he would not have ever been alone with the complainant and therefore did not have the opportunity to assault her as alleged.
[34] Whenever someone speaks in absolutes like this, they will invariably be challenged on it. It does seem more reasonable than not that a six year old boy, like the son was, may not stay engaged and present for the entire time it took to clean the tank. However, even K.G. admitted the son was very interested in his fish tank and would assist with its cleaning. That he may have not been present for the entire cleaning does not though, I find impact the accused’s credibility. From the accused’s perspective, cleaning the fish tank was a routine chore he did. This particular time it was alleged to have occurred from anywhere to several days to up to 10 days before the bedroom incident and any police involvement. That some details may have been forgotten is not surprising. Also given how it seemed the son was, if he did leave for a period of time while the tank was being cleaned, it seemed equally plausible he may have came back at any moment, so the accused’s opportunity to commit the act seems fleeting at best. In any event, an opportunity does not equate to corroboration of the complainant’s evidence.
[35] At its core, the accused’s testimony was simple and straightforward; he denied the allegations. His testimony was consistent and he was not shaken again by cross examination. There were no obvious flaws in his testimony and, like the testimony of the complainant, when viewed in isolation, there is no basis to reject it. As noted on more than one occasion above though, I am not to view his evidence in isolation. I must view it in the context of all the evidence, including that of the complainant.
CONCLUSION
[36] Since the evidence of the complainant was also compelling, it leaves me in a position where I am unable to conclude I believe the accused. What I am left asking is whether there is a way to resolve which of the two witnesses is truthful when I'm confronted with two compelling, but diametrically opposed versions.
[37] I ask myself if there is anything else in the evidence that can help me resolve this. The only other thing is the demeanour of the complainant immediately after the second incident as noted by K.G. and the utterances and reaction of the accused when he was first confronted with the allegations as noted again by K.G. and Officer Sayles.
[38] None of this evidence though is capable of assisting in resolving this tension between the evidence. Although the complainant’s demeanour could very well have been as a result the accused doing to her what she said he did, there was also evidence of the dynamics of the family that could provide possible other reasons for it. For instance, it seems clear the accused had his favourites amongst the children, his son, the complainant’s younger brother being one, and there seemed that a significant amount of conflict had been developing between the accused and complainant leading up to these allegations being made. I'm not suggesting this is why she was crying that night; my point is I just am unable to say for certain it was as a result of what she alleged happened to her.
[39] Similarly, the utterances and reaction of the accused when first confronted doesn’t factor in to whether or not I believe his testimony. To deny allegations such as this when first confronted by your spouse would likely be the expected reaction one would have. Furthermore, by the time the accused had his discussion with Officer Sayles, he had already been confronted with the allegations by K.G. and her sister, so his reaction then could not be said to be spontaneous. As such, I did not rely on this evidence when assessing the accused’s testimony.
[40] In the end, I am left in a position where I am unable to completely accept the evidence of the accused, but I am also unable to completely accept the evidence of the complainant. I am left uncertain as to which account to believe. I am sure this will be an unsatisfying result for most. Trials are often said to be searches for the truth, however sometimes the truth is elusive. This is one of those cases.
[41] As I am left uncertain who to believe, I am compelled to find the Crown has failed to meet its burden and the charges will be dismissed.
Released: January 27, 2022 Signed: Justice Robert S. Gee