Non-Publication and Non-Disclosure Warning

The court hearing this matter directs that the following notices be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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: 2022.08.09

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

L.C.

Before Justice W.B. Horkins

Heard on June 29 & 30, 2022

Reasons for Judgment released on August 9, 2022

Counsel: A. Gilmer ........................................................................ counsel for the Crown S. Chung-Alvares ........................................................ counsel for the accused

W.B. Horkins, J.:

[1] This case involves an allegation of sexual assault [1] dating back almost two decades to when the complainant was 5 and the accused was 15. The allegation was first voiced by the complainant two years ago. The evidence consists almost entirely of the complainant’s allegation countered by the accused’s denial.

Overview

[2] The factual context of the issues raised for determination in this case can be summarized with some economy. Within my reasons I will refer to the evidence in more detail as required.

[3] The complainant and the accused are first cousins. She says that the accused was baby sitting her at her parent’s home on the afternoon that it happened. He says he never baby sat her, on any occasion, in fact he says that he was never alone with her at any time when they were young.

[4] The complainant says that they were watching wrestling on TV when the accused said that he would show her what wrestling was. He lay on top of her. He pulled her underwear to one side and she could feel his penis near the entrance of her vagina. She felt pain. It wouldn’t fit. She can’t recall how long this lasted. He then told her it was just a game, but she must never tell anyone about it, or she would be in trouble. She never told anyone about it for 18 years. She says that she said nothing because she lived in fear of having done something wrong. She feared her parents. She feared God. She went to church every Sunday and asked God for forgiveness.

[5] Over the years the Complainant has wrestled with her mental health and “other issues”. The history and nature of the complainant’s mental health issues was not explored in detail and is largely irrelevant except as it relates to the evolution of her ability to “process” this matter and come forward with her complaint.

[6] During her extensive history of treatment and therapy she never disclosed or discussed this allegation with her therapists or doctors. The first disclosure that she made of this allegation was to her sister and mother in 2020, after which she went to the police and these charges where laid.

[7] The accused pled not guilty and denies that he ever babysat the complainant or was ever alone with her at all. When pressed in cross-examination as to whether he might have been tasked with watching his young cousin on at least one occasion many years ago, he conceded it was more accurate to say he could not recall doing so. He acknowledged that the extended family members lived in very close proximity to each other and often gathered for family events, but his recollection is that the boys played separately, and he was never alone with his young cousin.

Framework of Analysis

[8] The fundamental framework of analysis in a criminal trial is often left significantly abbreviated in judge alone trials. In this case, however, it is important to state this framework clearly. It plays a central role in the determination of this matter.

The Presumption of Innocence

[9] The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental organizing principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.

Proof Beyond Reasonable Doubt

[10] Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of "proof beyond reasonable doubt". This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[11] The expression proof "beyond a reasonable doubt" has no precise legal definition, but it is well understood. In 1997, in R. v. Lifchus [2], the Supreme Court of Canada outlined the definitive criminal jury charge on “proof beyond reasonable doubt”;

• The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
• On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
• In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[12] I instruct myself accordingly.

The Historical Nature of the Complaints

[13] The allegation before the Court in this case is legally referred to as a "historical complaint", meaning that the complaint before the court relates to an event that occurred many years ago. The courts recognize that trials of long past events can often raise significant challenges due to the passage of time. Memories tend to fade and time tends to generally erode the quality and availability of evidence.

[14] The “historic” nature of this case arises from the long-delayed voicing of the allegation against the accused. The delay in raising the matter creates a challenge for all concerned. The evolution of the complainant’s ability to, in her words, to “retrieve” and to “process” her memory and then be able to voice her allegation, becomes important context in assessing her evidence.

[15] At times the language used by the complainant to express herself seems clearly to be the product of her extensive experience in therapy. I do not have the benefit of a transcript and so when referring to the evidence I will often use quotation marks to convey what I recall as the wording used by the witnesses. These may not always be precise, but I am confident that they are representative of the language used.

[16] The complainant says that her memory of the event has always been “in her head”, that she “always had the memory” but for years was unable “to process it”. The complainant says that she “repressed” this memory for years. At the same time, she says that she was unaware of it but would have visual “flashbacks” of the event. In these flashbacks she would see the accused on top of her. Some of these flashbacks were “triggered” and others are just “random”. She also that it was “only recently” that she was able “to retrieve” the memory and “process it”.

[17] The complainant explained the evolution of her ability to “process” her memory and express her allegation. Initially she was too young to know that what the accused did was wrong. She thought that what she did was wrong. This makes sense. At age 16 or 17 she took a psychology course in school and learned about “inappropriate touching”, and she knew what sexual assault was. In university she says that she gained more understanding of “inappropriate touching”, but that it was only after graduating and after her hospitalisation and a diagnosis of “PTSD” in 2020 that it all started to make sense. It was only then that she says she was able to “process everything” and “allow herself to talk about it”. It was only after her graduation from university that she “had the time to think all this through” and “allow the memory to come to light”.

[18] The law no longer recognizes a presumptive adverse inference arising when a complainant in a sexual assault case fails to “raise the hue and cry” or come forward with a complaint proximate to the event alleged. The complainant in this case articulated her own complicated but credible reasons for not coming forward at the time of the events. Initially she was too young to understand fully what she had experienced. She was told to keep quiet and was afraid to tell anyone. As she matured, she was dealing with a constellation of mental health and emotional issues that made dealing with the matter difficult for her.

[19] The delayed disclosure does not trigger a presumptive adverse inference. However, on the evidence in this case it is one factor that is of some relevance in assessing the persuasive strength of the complainant’s evidence.

[20] The evidentiary record in this case leaves me with some difficulty in making clear findings of fact as to the exact status of the memory through the years as well as the evolution of the memory that forms the basis of the case against the accused. This aspect of the case is one factor that requires some caution in assessing the strength of the case against the accused.

[21] Not only does a delayed complaint sometimes negatively impact the strength of the Crowns case, but equally where an accused is called upon to respond to an allegation from deep in his past and of which he may have been completely unaware of until charged years after the fact, the accused can often be handicapped in making a persuasive response.

[22] In this case the accused clearly had difficulty in remembering the details of his interaction with his cousin twenty years ago.

Incremental Disclosure

[23] The complainant here was pressed in cross examination on why she initially told the police operator when she phoned in that she remembered “very little” of the event, and yet, when interviewed formally and again at trial, purported to have a “100%” recall of the event that occurred when she was 5 years old. She explained this as not being comfortable getting into detail with the 911 operator.

[24] The law has evolved to recognize that there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse. Each case must be assessed individually considering its own unique set of circumstances. This is not a case where the witness adds incrementally to the description of the events in successive statements. In this case, the complainant simply held back with the first contact person when she called in. I do take note of the fact that she said that she remembered “very little” of the assault and that remark is certainly inconsistent with her subsequent police interview, and with her evidence at trial. I do not consider this a very weighty concern in assessing the overall reliability of the complainant’s evidence, however it is a factor that cannot be entirely ignored.

Lack of Corroboration

[25] It is common for sexual assaults to be committed in relative privacy. There is often no significant evidence except the conflicting testimony of the complainant and the accused. Criminal trials where the allegations against an accused are supported by nothing, or very little, in addition to the complainant’s evidence, are a significant challenge for the prosecution. While there is no legal bar to convicting an accused on the uncorroborated evidence of a single witness, the court must exercise great caution in doing so, especially where, as here, there is a conflicting sworn denial from the accused.

[26] In this case, as in so many like it, there were no witnesses to the alleged occurrence, there are no contemporaneous statements from the parties, there is no physical evidence, no forensic evidence, no DNA, no fingerprints, there are no photographs or recordings of the events. There is no "smoking gun". There is only the conflicting sworn evidence of each of the two main witnesses standing virtually alone and in direct conflict.

The “W.D.” Framework of Analysis

[27] In the landmark case of W. (D.) [3] the Supreme Court articulated the proper framework of analysis in a case where the competing credibility of the complainant and the accused is the pivotal issue in a criminal case. To paraphrase Justice Peter Cory in that case, it is absolutely incorrect in a criminal case for the court to approach the matter on the basis of having to decide whether to believe one or the other. Employing this either/or proposition excludes the third alternative; namely, that the court, without believing the accused, but after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

[28] The model jury instruct from W.D. is as follows;

“ 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 The Accused

[29] Mr. C. is 35, married with children and employed as a sous chef by a prominent local restaurateur. He has no history of conflict with the law.

[30] The Accused pled not guilty and says that, as far as he can recall, he never babysat the complainant when they were young and in fact, has never been alone with her at any time at all. This no doubt amounts to a denial of the allegations although, surprisingly, the accused never expressly said in his evidence, “I did not do this”.

[31] In fairness, I think it fair to assume that the first moment that the accused was put on notice to try to recall, and explain, the events of 18 years ago was just last year when he was charged. The allegation itself is serious but lacks much detail or context that would allow an innocent man to anchor a response beyond a fairly bald denial. What more could he say? The date of the allegation is vague, the alleged act was fleeting and there are no surrounding circumstances described to allow a more detailed response.

[32] The accused’s response to the allegation was simply that he never babysat the complainant nor was he ever alone with her. All contact with her when they were young was in the context of large family gatherings. The family babysitting tasks were done primarily by the grandparents or the girls in the family. This was confirmed by the accused’s sister, R. who says that she and the grandparents where the ones that usually babysat the complainant.

[33] Contrary to R.’s evidence on this point, the complainant’s mother testified as part of the Crown’s case saying that the accused himself told her that he babysat the complainant. It was not made clear when, where or how this statement was made or what occasion or occasions it referred to. The accused flatly denies it. In the absence of such detail, I approach this evidence from the complainant’s mother with some reservation.

[34] Frankly, and in a general sense, the accused was not an overly compelling witness. His responses when challenged were somewhat hesitant and at times he seemed uncertain. Having said that, apart from the evidence of the complainant, there is very little, if any, basis for rejecting his sworn denial of the allegation as being untrue.

The Evidence of the Complainant

[35] I am mindful that in applying the W.D. framework of analysis it is possible for the evidence of a complainant to be a sufficiently persuasive foundation for rejecting the less than satisfying exculpatory evidence of an accused [4].

[36] I will call the complainant A.P., she is 24 years old. The assault that she accuses her cousin of dates back to when she was 5 years old.

[37] The complainant gave her evidence in an emotional, yet clear and articulate fashion. The emotion of giving her evidence at trial was clearly difficult for her and she broke down in tears once or twice. She is clearly emotionally fragile.

[38] A.P. was very transparent in describing some of her seemingly life long mental health and emotional challenges. She has been in therapy for many years and has been hospitalised at least four times. She described these hospitalisations and different therapies as part of the evolution of her understanding of the nature and significance of the assault. As indicated, it seems that it is only recently that she gained the ability to both fully understand the event and to speak of it.

[39] A critique of this complainant’s evidence is a delicate matter. Her evidence is replete with issues and aspects that the courts have come to be very cautious of in striving to avoid inappropriate adverse presumptions and stereotypical thinking. I am very alive to the dangers and unfairness of measuring the complainant’s evidence against some general standard or belief in how a victim would or should behave.

[40] However, there are aspects of this case, grounded in the evidence, that require a cautious approach; the delayed disclosure, the complainant’s vague long standing animus towards the accused that she did not understand until she was able to “process” the memory of the assault, her reluctance to accept in cross-examination any potential frailties in her memory and specifically her refusal to consider any possibility that her memory might have changed or faded with time. She insisted that she had 100% recall of this event from 20 years ago when she was 5 years old.

[41] Although the full nature of the complainant’s mental health diagnosis and treatment is unclear there is no evidence that her long standing struggle with emotional and mental health issues is any reason to diminish her sincerity as a witness. Having said that, some caution is necessary when considering that the present allegation came to the surface only as a product of her recent therapy.

[42] As I have already said, there is no presumptive adverse inference to be draw from a long-delayed reporting of a sexual assault, however, on the facts of this case, that aspect cannot be totally ignored. While the chronology of the delayed disclosure is somewhat concerning, the complainant did articulate an explanation. I do not reject her explanation, but I do have some difficulty in fully understanding the difficulties that the complainant says blocked her coming forward earlier in life or impaired her understanding of the alleged assault until very recently.

[43] The mechanics of what she referred to as “repressing” or “processing” of the event was not well explained in the evidence and seemed to a limited extent at odds with a “retrieval” of a memory that she also told us “was always there”.

[44] I accept that when she was very young she might not understand the forbidden nature of her cousin’s conduct. But, as a teenager, and in High School she clearly knew that it was grossly inappropriate behaviour and yet it was only years later after much therapy and after graduating from university, that she says she was able to “process” it and have the time to deal with it.

[45] With her continuing therapy experiences over the years, she had every opportunity, and one might think every reason, to share the memory of this grossly inappropriate event in confidence with her doctors when searching for the basis of her emotional challenges. Even after her diagnosis for “PTSD” she did not share the memory of this traumatic event with her doctors.

[46] None of the various therapeutic terms used by the complainant are new to the court. I suspect that these are terms that have frequently been used in the complainant’s history of therapy sessions and so it would be natural for her to use them in describing the history of her evolving ability to understand and discuss this matter. I am frankly still not clear on why this assault was left undisclosed for so long and until she “had time to deal with it” after graduating college? Waiting until there is “time to deal with” it seems out of harmony, or disproportionate, to the gravity of the allegation. It may be understandable, but none the less, it requires a careful and critical assessment of the whole of the evidence before me.

[47] In summary, the chronology of the delayed complaint in this case and the mechanics of it being brought out, are a factors of some limited, but not entirely inconsequential, concern.

Motive to Fabricate

[48] It was suggested that the complainant had a long-standing animus or ill will towards the accused and that this might explain a false or imagined complaint. The complainant says that “growing up” she knows that she “didn’t like” the accused. He would push her away when she tried to play with him. As a result of this feeling she would stay away from him at family gatherings. She said that at the time she “knew deep down” why she didn’t like him but “the memory” “was repressed”.

[49] She remained “distant” from the accused although she became close to his wife. The memory of why she disliked him was only “retrieved” when she was asked to be his child’s Godmother. She was angry at “being tied to him in that way” but accepted what she described as a “real honour” to be the Godmother of his child in any event.

[50] It is difficult to assess the importance of this evidence. Growing up she was wary of the accused and kept her distance from him for some reason that she was uncertain of at the time. When asked later in life to be his child’s Godmother she was angry at the prospect of being “tied to the accused in that way” and yet she accepted the honour in any event. She was not prepared to explain her reluctance or anger to anyone at the time. Where this event fits in the chronology of the complainant’s therapy, her understanding of the nature of the alleged assault and her newfound ability to “process it” is unclear.

[51] This aspect, taken in isolation, does not create a significant likelihood that that the complaint is fabricating this allegation out of ill will for the accused. But again, it cannot simply be ignored.

[52] None of the concerns I have referenced are individually of very much weight in undermining or diminishing the evidence of the complainant. She was appropriately emotional in the stand. She was firm in holding to her allegation. However, collectively, these individual concerns do mandate a careful and cautious approach to the complainant’s allegation.

Conclusion

[53] The law recognizes a spectrum of degrees of proof. The police lay charges based on "reasonable grounds to believe" that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being "a reasonable prospect of conviction". In civil litigation, a plaintiff need only establish their case on a "balance of probabilities”, in other words that the allegation made is more likely to be true than not. However, to support a conviction in a criminal case, the strength of evidence must go much farther than any of these standards and firmly establish the Crown’s case to a point of “proof beyond a reasonable doubt”. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.

[54] R. v. Michaud [5], a recent judgement of the Nova Scotia Supreme Court, is a useful reference concerning the role of the presumption of innocence in sexual assault cases. Justice J.A. Keith had this to say;

"14. … one further comment regarding the presumption of innocence is appropriate in the especially emotive context of alleged sexual assaults against children. Society's most innocent and vulnerable must be protected. Sexual predators must be held accountable. At the same time, the Court must guard against the presumption of innocence sinking under a wave of vengeful anger. In R. v. J.(F.E.) (1990), 53 C.C.C. (3d) 64 (Ont. C.A.), Galligan, J.A. wrote about how the impulse for retribution can trigger a rush to judgment and test our commitment to the presumption of innocence:

... Sexual abuse of children is a despicable crime. It is not easy to detect and, because it invariably happens in private, it can be difficult to prove. Usually, it comes down to the word of a child against that of an adult. It is easy, therefore, to be sympathetic with the efforts of those who try to discover these crimes and prosecute their perpetrators.

While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, it would be horrible for an innocent person to be convicted of it. For that reason, I think the courts must be vigilant to ensure that the zeal to punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction of the innocent. [at paragraphs 7 -- 8]

[55] This is a very close case. Apart from the accused’s denial of guilt there is little reason to doubt the allegation made by the complainant. In applying the W.D. framework of analysis it is possible in some cases for the evidence of a complainant to be sufficiently strong and persuasive to be a foundation, in and of itself, for rejecting the less than satisfying exculpatory evidence of an accused [6]. However, in a case such as this where, having considered all of the evidence, the court remains uncertain who to believe, the accused is entitled to an acquittal.

[56] Although I find the complainant’s evidence persuasive, and the accused’s response lacking in many respects, I am unable to articulate a reasoned rejection of the accused’s denial. The evidence, taken as a whole, leaves a reasonable prospect that he is innocent and so does not fully satisfy the required standard of proof beyond a reasonable doubt.

[57] For these reasons the charges against the accused will be noted as dismissed.

Released: August 9, 2022 Justice W. B. Horkins

Footnotes

[1] The accused is charged with both sexual assault and sexual interference. The conduct alleged would satisfy the essential elements of both offences.

[2] R v Lifchus, [1997] 3 S.C.R. 320

[3] 1991 93 (SCC) , [1991] 1 S.C.R. 742

[4] R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.)

[5] R. v. Michaud, [2022] N.S.J. 173, as cited in Alan Gold’s Netletter, Lexis Advance Quicklaw issue 1311, June 13,2022.

[6] R v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.)