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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Date: March 9, 2023 Court File No: 21-0110
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
P.T.
Before: Justice M. G. March Heard on: October 24, 31, November 1, and December 14, 2022 Reasons for Judgment released on: March 9, 2023
Counsel: Richard Morris, for the Provincial Crown Michael Smith, for P.T.
March, M.G., J. :
Introduction
[1] The accused, P.T., stands charged that between 2013 and 2015 in the Township of McNab-Braeside, Ontario, he did:
a) commit a sexual assault on K.C. contrary to section 271 of the Criminal Code (“the Code”), b) touch K.C., a young person, for a sexual purpose with his penis, while being in a position of trust or authority toward her, contrary to section 153(1)(a) of the Code, c) invite K.C., for a sexual purpose, to touch his penis directly with her mouth contrary to section 153(1)(b) of the Code, d) use a weapon, a knife, in committing a sexual assault on K.C., contrary to section 272(2)(a) of the Code, e) confine K.C., without lawful authority, contrary to section 279(2) of the Code, and f) knowingly convey a threat to K.C. to cause death to her, while holding a knife and gun, contrary to section 264.1(1)(a) of the Code.
[2] At the outset of trial, the defence admitted the identity of P.T. as the accused before the court, as well as the Court’s jurisdiction to hear the matter.
[3] P.T.’s trial then proceeded over the course of four days. At the end of the Crown’s case on the third day, namely November 1, 2022, defence counsel made an application for a directed verdict on the count of committing a sexual assault while using a restricted firearm, a pistol, contrary to section 272(2)(a) of the Code. After some hesitation, Crown counsel decided to withdraw that charge due to an absence of evidence to make out the offence.
[4] As with so many criminal trials, the outcome of this case will turn on an assessment of the credibility and reliability of the witnesses called to testify.
The Relevant Evidence
K.C.
[5] When K.C. began giving her evidence on October 24, 2022, she was 16 years of age. She was attending high school. She had recently moved out of her parents’ home.
[6] She recalled speaking to police about the incidents involving P.T., which brought her to Court. She estimated that over a year had passed since she had done so.
[7] K.C. reckoned that her mother, R.C., and she just walked into the Renfrew detachment of the Ontario Provincial Police (“OPP”) to lodge the complaint about P.T. She did not know the exact date upon which this occurred.
[8] She understood that her conversation with police would be recorded.
[9] K.C. stated that when she was younger, her great uncle, P.T., sexually touched her. P.T. is the brother of her maternal grandmother.
[10] K.C. believed that she was around eight years old at the time it began. She could not recall in which grade she was at school. She ventured that she could have been in grade 3. She was born on [date removed], 2005.
[11] K.C. explained that she was living with her parents in Barrhaven at that point in time. Every other weekend, she would visit her maternal grandparents in White Lake.
[12] She described the layout of her grandparents’ home as a bungalow with a living room and dining room combined, a kitchen, two bedrooms and a bathroom on the main floor.
[13] P.T.’s bedroom was in the basement. There was also a laundry room downstairs as well as a living/storage area, where P.T. had a couch, TV and gaming consoles.
[14] The basement was accessed through the kitchen.
[15] In speaking of the sexual touching to which she was subjected, K.C. described it as “very much a blur”. She could not remember well the first time the touching occurred.
[16] She could say that she was brought into his bedroom and touched in many different places. She was enticed in there with either stuffed animals or video games, more often the latter.
[17] She explained that she was “very much a kid who liked playing games”. She remembered the names of a couple of them, “Kirby” and “Curious George”.
[18] P.T. would touch her in numerous areas, amongst them, on the chest and vaginal areas. She did not have developed breasts at the time. When this occurred, K.C. would be very scared and confused.
[19] She did not recollect how the touching came about, or what led up to it.
[20] She did nevertheless have a memory of the use of a knife on the first occasion of being sexually touched. She guessed that P.T. used it to scare her. He made a small cut from her ear to part of her throat. K.C. told her grandparents that a cat had scratched her. They treated it with Polysporin.
[21] K.C. remembered as well that P.T. also forced her into doing what people call “giving head”. However, this type of sexual activity did not occur during the first occasion.
[22] All instances of sexual touching occurred in P.T.’s bedroom in the basement. K.C. could not place a number on all the times it would have occurred. Nor could she say how one instance differed from another. She would be sitting on the bed. She could not recollect exactly where he would be in relation to her. No one caught him in the act. She could not remember what happened the last time.
[23] She reckoned that she went to her maternal grandparents to visit every second weekend, roughly between 25 and 26 times per year. She testified that she was probably inappropriately touched on every one of those occasions. Most of them were very blurry in her mind now though. They happened “a very long time” ago.
[24] K.C.’s memory was scant regarding the first incident. She did not remember:
a) which hand P.T. used, or if it was both, b) how long the sexual touching lasted, c) what precipitated her going downstairs to play video games, d) how he introduced or used the knife on the first occasion, and e) what words, if any, were spoken.
[25] Nevertheless, K.C. recalled that she was able to slip away from him and make her way upstairs during that first occasion. She escaped his grasp, she believed, by biting him on the left wrist on the front of his arm. He lunged away from her when she did so. She then made her way upstairs and sat with her grandfather where she felt safe.
[26] K.C. also had a specific recollection of how P.T. left her grandmother’s home in White Lake for good. He had been yelling at her. Her grandmother had just lost her husband. K.C.’s mother, R.C., was present as well. R.C. kicked him out of the house.
[27] K.C. believed that this incident occurred the day after she was last touched sexually by P.T.
[28] K.C. added that P.T. would not have been told to move out of her grandparents’ home because of anything to do with her “situation”. K.C. did not have the courage to tell her parents about what P.T. had done to her until roughly 3 years prior to testifying in Court.
[29] K.C. explained that she was reluctant to speak of her sexual abuse because P.T. had threatened her younger brother a few times with physical harm if she did not keep quiet about what P.T. was doing to her. Her brother is two and ½ years younger than she is.
[30] She could not recall what P.T. said he would do to her brother. She did say that if she was not doing what P.T. expected of her, he would begin yelling what he would do to her brother. She could not be certain, but she believed that that was the first time she was threatened by P.T. with a gun.
[31] The gun she described as a silver pistol. She did not know if it was real, but P.T. had put it to her head a few times warning of the consequences, if she did not listen to and do what he told her to do.
[32] K.C. stated that she was only ever threatened by P.T. with the knife and the pistol. She had no clue where the pistol came from.
[33] In respect of the particulars of the sexual touching, K.C. was able to relate that P.T. did penetrate her. He inserted his penis inside her vagina, mouth and butt.
[34] She was sure however that no penetration occurred on the initial occasion she was sexually touched by P.T.
[35] The first act of penetration involved P.T. putting his fingers in her vagina. She estimated that it was a few days after she had initially been touched by him sexually. She could not provide exact details, but did recall his fingers inside her while they were in his room. She could not however remember any other things he did to her at that time.
[36] Her brother had come down to the basement with her. He went upstairs to get food.
[37] She was wearing a T-shirt and jeans as she usually did. She knew that her pants had been removed, and he did it. She just did not know how they came off.
[38] They were on the bed. He pulled her top over her face and head. She could not see what was going on or how long it went on for. She was scared.
[39] His fingers “always” went in her vagina. That day he did not use his penis. That only happened “closer to the end”.
[40] The experience was very painful.
[41] K.C. estimated that P.T. used his penis to penetrate her vagina more than 20 times. No condom was ever used, nor any form of birth control. She was young and did not even know what birth control was.
[42] K.C. added that P.T. put his penis in her anus as well. That happened on two or three occasions after vaginal penetration had begun. She could not recall any circumstances surrounding those occurrences, except that he did it to her on his bed.
[43] The sexual touching only ended after P.T. left her grandmother’s home.
[44] K.C. did recall a couple of occasions where P.T. would have visited her grandmother’s house after her grandfather had passed away. K.C.’s parents did not know about this. She explained that her family had moved from Barrhaven into her maternal grandparents’ home after her grandfather had died.
[45] K.C. explained that her brother and she were always together at her grandparents’ place, whenever they visited, prior to her family actually moving there. When the incidents of sexual touching occurred, he would be on the couch in the basement or upstairs, but she could not hear what was happening elsewhere in the house, because P.T. would shut his bedroom door. She could not remember P.T. ever explaining why he would be shutting his door.
[46] She reiterated that she kept quiet because she did not want anything bad to happen to her brother. She never saw P.T. directly threaten him. He would just say it to her. She took his threats seriously.
[47] She pointed out that she was young. She remembered a few times that P.T. threatened to “take a knife to my brother’s neck”.
[48] In terms of the sequence of the threats, K.C. attributed to P.T. the use of the knife first, then the silver pistol second. She explained that she does not know handguns at all. She is not a gun person, but the use of the gun came “closer to the end of everything”.
[49] She did not remember when she first saw the gun. It was produced when she was not listening and not doing what he wanted her to do. It would be laid down on the bedside table.
[50] K.C. testified that she never saw the gun again after P.T. was kicked out of the home.
[51] She knew that her grandfather had guns locked away in the basement, but she had never seen the contents of his gun cabinet. She never saw it opened or unlocked.
[52] She repeated that P.T. did penetrate her with:
a) his fingers on occasion, b) vaginally with his penis, and c) anally with his penis.
[53] She was not able to accurately recall the timing of when the sexual touching occurred. The only injury she suffered was the cut. She never received any medical attention.
[54] Under cross-examination on October 31, 2022, K.C. was reminded that she gave her statement to Constable Darraugh of the Renfrew OPP on January 21, 2021.
[55] K.C. acknowledged that she had been provided an opportunity to review the transcript earlier that morning before coming into Court to give her evidence.
[56] K.C. thought that it was roughly a two hour round-trip to travel from her parents’ home in Barrhaven, where her family originally lived, to her grandparents’ place in White Lake. Either her mother or father would drive her to and from White Lake.
[57] K.C. acknowledged that you could hear people within her grandparents’ home, if you were downstairs, and they were upstairs, and vice versa.
[58] Habitually, her grandfather would be upstairs watching TV. There was no game console to play video games on that TV. However, K.C. could play games on her iPad up there.
[59] She agreed therefore that she could have stayed upstairs to play video games. However, there were certain games that could be played with a person upstairs and another downstairs.
[60] Her grandfather was always there while he was alive, and she was visiting. He would typically be in his chair. He could not go up and down the stairs.
[61] K.C. explained that she was very close to her grandfather. He was her protector. Between the years of 2013 and 2015, she was very aware of that fact.
[62] She appreciated that her grandfather was somebody to whom she could turn if she had a problem.
[63] P.T. and her grandfather had no blood relation.
[64] K.C. added that she was very close to her grandmother as well. K.C. knew that she could talk to her.
[65] She could also confide in her parents. She had a good relationship with her father.
[66] On occasion, K.C. would go with her grandmother to work. Her grandmother cleaned offices to earn extra money. Sometimes, K.C.’s brother would go along with them as well.
[67] Aside from playing video games in the basement, K.C. conceded that she did not spend a lot of time down there.
[68] K.C. did recall that there was a couch downstairs in front of the TV. There was no ability to play video games in P.T.’s bedroom. There was a lot of junk strewn about. It served as a storage area too.
[69] She was aware that P.T. had learning disabilities. However, when she was a “kid”, she did not understand that he was a man in a child’s body.
[70] Over the material time frame, 2013 to 2015, K.C. remembered speaking to P.T. on numerous occasions, but she did not recall how his voice sounded, even though he was the one who had threatened her.
[71] K.C. did not agree that P.T. worked on cars outside a lot. To the contrary, she thought he was inside more often than not.
[72] She agreed that they would have meals together, but P.T. would not be with the rest of them all the time.
[73] K.C. did not remember being outside to play often. She could not recall going to visit horses in White Lake. There was never an occasion, to her mind, when she went with her brother to see horses near her grandparents’ home.
[74] When shown a photo of her brother and her as young children standing on a wire fence and patting a horse, she did not have any recollection whatsoever of the day.
[75] Generally, K.C. conceded that she did have difficulties remembering the material events when she spoke to Constable Darraugh about what P.T. had done to her. As an example, she could not remember any of the words used by P.T. to threaten her.
[76] K.C. could remember nevertheless providing police with information on January 21, 2021, that there was no lock on P.T.’s bedroom door. It was open when he did things to her, so P.T. could hear her brother nearby outside. However, she maintained that P.T. did close the door sometimes when he would take her in there and was touching her.
[77] K.C. testified that there was one definite instance when P.T. was fondling her sexually and her brother was outside the bedroom, and close by, but he could not see in.
[78] She also agreed that when she spoke to police on January 21, 2021, she was unable to inform them as to the first and last times the sexual touching occurred. Yet, she was able to remember the first occasion when she testified in Court exactly one week earlier when her examination-in-chief began on October 24, 2022. She agreed that the first and last times would be important and very memorable events.
[79] Indeed, K.C. agreed when it was suggested to her that her memory was improving with time. As a prime example, she conceded that she never told Constable Darraugh about P.T. having anal sex with her. However, K.C. maintained that she was never directly asked about anal sex.
[80] K.C. then acknowledged that she was taken through each incident “chapter and verse” by Constable Darraugh, and was expected to tell everything that she was able to recall about the sexual touching. K.C. was given “carte blanche” to discuss with the officer the full extent of the various episodes over which the abuse occurred. She understood that she was not to leave anything out. The police officer was looking for as much detail as she could possibly remember, but K.C. did not mention anal sex to Constable Darraugh.
[81] K.C. admitted that the officer was asking open-ended questions to elicit as much information as she could provide, the same way Crown counsel had asked her those type questions of her during her examination-in-chief. K.C. agreed it was true that she did not tell police about anal sex. The first mention she made of it was in Court.
[82] K.C. agreed that the same could be said for the biting of P.T.’s wrist to escape his grasp. She did not remember it when she spoke to police. She did while testifying in Court.
[83] Further, K.C. acknowledged that she could not say where the sexual touching occurred, be it on P.T.’s bed, on the floor, standing up, or sitting down when giving her statement to police, whereas while testifying, she could remember some of those specifics.
[84] K.C. admitted that she could have told her parents or grandparents about P.T.’s sexual abuse. She did not do so. Nor did she ever ask not to go to her grandparents’ house.
[85] She conceded that she was never forced to go downstairs to play video games. She was nevertheless enticed to do so by P.T.’s offer to engage in that pastime.
[86] She explained that she would be in the basement with her brother. She never wanted to leave her brother alone with P.T. He would leave to eat something or to use the bathroom. The abuse then happened.
[87] P.T. would pull her back if she tried to leave too. He would take her to the bedroom and get the gun.
[88] The gun, K.C. was sure, did not belong to her grandfather. His firearms were locked up.
[89] She remembered as well that she would go to her grandparents’ place with an overnight bag. Of course, given her young age, she was not responsible for doing her own laundry.
[90] Her dirty clothes would be brought back to Barrhaven to be washed by her parents.
[91] She was not aware of any occasion upon which her clothing or underwear would have been soiled with blood, semen, or anything of that nature. However, she quickly pointed out to defence counsel, “I was eight years old.”
[92] She denied that she would remember blood or other bodily fluids on her clothing. She agreed that she would at times put the same clothing back on that had been taken off by P.T. after he had sexually touched or penetrated her.
[93] Under re-examination, K.C. clarified that her brother and she would go to work with her grandmother whenever their grandmother decided to take them. At the young age she was between 2013 and 2015, she would not be expected to cook or care for herself. There were, of course, times when she did not accompany her grandmother, but her grandfather would be home with her brother and her.
[94] She was able to identify the knife used by P.T. to threaten her as one which her grandmother used from time to time. She reiterated that the gun brandished by P.T. was not owned by her grandfather.
[95] K.C. was clear. The only thing going through her head when it was pointed at her as an eight-year-old was, “I don’t want to die.”
[96] Her reluctance to tell anyone about what was occurring to her was out of her need to protect her brother.
[97] She never tried to run or get away when the abuse was happening because she knew P.T. could hurt her. She believed after receiving the cut on her neck that he would.
[98] The only complaint she could ever recall making was that her back hurt after P.T. pushed her against a wall.
R.C.
[99] K.C.’s mother, R.C., testified on November 1, 2022, that K.C. was no longer living with her. She had moved out of the family home roughly 2 ½ to 3 weeks earlier. RC added that K.C. was about to turn 17. Her only other child, a son, was 14 and continued to live with her husband and her.
[100] R.C. stated that K.C. was closer to her father at that moment.
[101] R.C. recalled that K.C. began to have a rough time getting along with a couple of her friends in 2019. She attributed it to arguing amongst teenagers and “girls being girls”.
[102] Around that time however, one of the girls’ mothers told R.C. that she was going to go to the police about an historical incident of sexual abuse involving K.C.
[103] The C. family was living in White Lake at the time, as were the other girls. The three teenagers including K.C. were no longer friends but remained acquaintances.
[104] After R.C. learned of the ongoing argument amongst the girls, she confronted K.C. about the sexual abuse allegations her daughter was making. K.C. did not go into detail. However, she told her mother that it happened when she was eight years old.
[105] R.C. tried to speak to the other mom, but she had already gone to police with the complaint.
[106] R.C. explained that K.C. was petrified to tell her father and her about what happened. K.C. was scared about how her parents would treat her, and regard her thereafter.
[107] R.C. lamented that she still does not know everything because K.C. did not want her to know.
[108] In October 2019 after the matter had come to light, K.C. did not want to “press charges” according to R.C.
[109] R.C. believed that in January 2021, she took her daughter, K.C., to the Renfrew detachment of the OPP, when K.C. was ready. K.C. understood what would ensue. She did not want to have to confront P.T., but she wished to go forward with her complaint.
[110] RC and her mother accompanied K.C. to the police station. From what R.C. could gather, P.T. was charged in consequence of the statement K.C. gave to a female police officer.
[111] R.C. recalled that when K.C. was in grade 4 to roughly grade 6, she would occasionally get anxious and wet herself. K.C.’s teacher brought this rather concerning behaviour to the attention of R.C. after the C. family had moved to White Lake.
[112] Under cross-examination, R.C. clarified that the argument that K.C. was having with her two friends occurred over text in a chat room.
[113] R.C. acknowledged that between 2013 and 2015, K.C. and she had a very good, open and candid relationship. K.C. had the same type of relationship with her father. They could “talk about things”.
[114] R.C. gave her children advice about what was “off-limits”. She explained to them that their bodies are their own. The world is a scary place. She shared this message throughout the conversations she had with her children over the years to create “open dialogue”.
[115] R.C. estimated that the drive from their home where they were living in 2013 through 2015 was roughly 30 minutes one way from Barrhaven to White Lake. She recalled that P.T., on a couple of occasions, perhaps picked her children up in Barrhaven and brought them back to White Lake, or vice versa.
[116] The arrangement that R.C. had with her parents was that the children would stay the Friday and Saturday nights and return home on Sunday. She agreed that her children had plenty of time to talk with her, if they wished, during the drive.
[117] It appeared to R.C. that the children enjoyed going up to White Lake to visit their grandparents. They had their own bunkbeds there. Occasionally, R.C. would stay up there with them in White Lake too.
[118] To R.C., everything appeared to be fine. She had no cause for concern or worry for her children in talking to them and observing their behaviour.
[119] She never noticed any physical injury suffered by her children other than normal bumps and bruises while they were in White Lake. She recalled that they spent a lot of time outside.
[120] R.C. was responsible for doing their laundry for them. She would pack a bag before they left. They would return with it. She never found soiled undergarments. However, sometimes her mother would do the laundry ahead of time to help her out.
[121] The ‘drop off’ of the children occurred on the Friday night. Those evenings when they would be in White Lake, R.C. would call before their bedtime to check on them and to say good night. It was the normal type of conversation a parent would have with children of that age. She would ask how their day went. She was in regular contact with them.
[122] Part of their weekend may include going to work with her grandmother, P.P., R.C.’s mother.
[123] When R.C. would go to White Lake to pick up the children on the Sunday, P.T. would sometimes be at her parents’ house. On occasion, R.C. would stay and share a meal with them. P.T. would at points be present too.
[124] R.C. remembered that over the material time, P.T. had firearms. She was “pretty sure” he had a 22 caliber rifle. She recalled P.T. telling her he had a pistol. She was not aware of other weapons he owned.
[125] R.C. was clear. She knew P.T. her entire life. He was raised to think he was a kid in an adult’s body. She acknowledged though that he had developmental challenges.
[126] Under re-examination, R.C. specified what she understood to be P.T.’s condition. He had a speech impediment and a learning disability. His mother and her boyfriend raised him to think that he did not have to work.
[127] P.T. was like a brother to R.C. She treated him like a man. His parents did not.
[128] In describing the character of her daughter, K.C., as a child, R.C. stated that K.C. was more of an introvert. As her mother, R.C. was able to draw her out. However, R.C. recalled that K.C. seemed to withdraw after her grandfather passed away in January 2015.
P.P.
[129] When K.C.’s grandmother, P.P., testified on November 1, 2022, P.P. explained that as a child, K.C. would come to P.P.’s home to be cared for every second weekend.
[130] P.P. lost her husband, K.C.’s grandfather, R.P., in January 2015. K.C. and her brother would visit both before and after R.P.’s death.
[131] In 2017 or 2018, K.C. and her family moved into P.P.’s house in White Lake.
[132] P.P. explained that P.T. is her brother. He is closer in age to her daughter, R.C., than he is to P.P.
[133] P.P. was employed at a local hospital as a nursing aide. On her days off and weekends, she cleaned offices there as well to make extra money. Her husband, R.P., prior to his death, had been disabled. P.P. worked two or three jobs to make ends meet.
[134] While he was alive, R.P. would care for K.C and her brother while P.P. worked.
[135] P.P. stated that she had a close relationship with both children.
[136] Over the material time frame, P.P. gave evidence that P.T. worked odd jobs. He would ramble around and go places collecting scrap metal to try to make money. On occasion, P.P. would come home to find P.T. at the house when she did not expect him to be there. P.P. thought at the time that P.T. was just in “one of his lazy moods”.
[137] P.P. pointed out that it was hard for her husband, R.P., to go up and down the stairs of their home due to his COPD condition. P.P. suffered herself from the same disease.
[138] Her husband was also a Type II diabetic, who needed regular doses of insulin. He died suddenly of a massive heart attack.
[139] In describing the layout of her home in White Lake, P.P. testified that P.T.’s room was in the basement. That area was also used for storage. There was a refrigerator kept down there as well for pop and beer. There were also freezers for preserving wild game.
[140] To P.P.’s recollection, P.T. would at times take her grandchildren to the park. On other occasions, they would catch frogs together.
[141] P.P. was aware that P.T. had firearms. She was not familiar with them. She knew that P.T. had a shotgun. He also once showed P.P. and her husband a pistol, which looked to her like the ones she had seen in Westerns.
[142] P.T. had his own cabinet downstairs to store his guns.
[143] P.P. would not go into P.T.’s room. She considered that to be his space.
[144] To P.P., P.T.’s and K.C.’s relationship appeared fine. Often, she recalled P.T. would suggest to K.C.’s brother, W.C., to come along with him to do things. K.C. would follow. They would go outside to watch P.T. work, or to walk to the little pond to get tadpoles or frogs. Sometimes, P.T. would take W.C. and K.C. to the dump with him.
[145] Under cross-examination, P.P. described both K.C. and W.C. as busy children. When she took them to work with her, they would follow her around from room to room. They would be with her for a few hours. This occurred mostly on Saturdays.
[146] P.P. did not recall the children having much interaction with P.T. on Friday nights.
[147] P.P. pointed out that she also cared for the children during the summer months.
[148] If P.P. were called into work at the hospital in her role as a nursing aide, the children would not go with her. It was a 15 to 20 minute drive for P.P. to get to work.
[149] Generally, it was on weekends that P.T. would be around the children. They would go out and play in the yard. P.P. considered fresh air to be good for them. Her husband, R.P., and she encouraged that type of activity on the part of the children.
[150] They, of course, were not outside all the time. Often, they would stay inside to watch cartoons on TV.
[151] Both children liked to go to the pond. K.C. wanted to do what her brother did. P.T. would bring them there. There was also a farm with horses nearby.
[152] P.P. recalled that they would all eat meals together. P.P. considered this an important family activity. During those times, she did not remember any conversations of great significance.
[153] P.P. enjoyed spending as much time as she could with her grandchildren. They talked and shared stories together.
[154] As far as injuries were concerned, P.P. could only recollect scrapes and bruises from playing outside. K.C. did not complain to P.P. of anything else.
[155] When visiting, the children would arrive at P.P.’s home with overnight bags. Sometimes, P.P. would do their laundry for them before they went back home. She would grab a handful of clothing and throw it into the laundry. Occasionally, it would smell of urine.
[156] Generally, P.P. did not notice anything of concern, but nor, she added, was she looking for anything.
[157] P.P. would dry and fold their clothing. She did not ever see blood or staining on the children’s laundry. She folded them fast.
[158] In terms of P.T.’s relationship with P.P., he could be aggressive with her from time to time. He would want to know where she had been and what she was doing. She explained to P.T. that she was not married to him. Eventually, she had to ask him to leave her home.
[159] After R.P. died, P.P. was feeling sick. She would go to visit her daughter, R.C., in Barrhaven. Sometimes, the kids would be there. K.C. and W.C. would continue to visit P.P. as well at her place after her husband passed away.
[160] P.P. was aware that P.T. hunted. When he showed her husband and her the pistol that one time, she did not pay much attention. She was not sure when this occurred.
[161] P.P. saw the cabinet where P.T. stored his weaponry. However, she never looked inside it. Nor did she know where P.T. kept the key.
P.T.
[162] When P.T. testified on December 14, 2022, he was 49 years old and single with no children. He was taking medication for depression. He was also prescribed blood thinners and water pills.
[163] In terms of his education, P.T. indicated that he went to an alternative school. He was in a special education class.
[164] He explained that he had a speech impediment and learning difficulties. He had been diagnosed with severe ADHD. He could not focus on tasks. He could not keep doing the same thing, he lamented, without getting discouraged.
[165] He was receiving a disability pension. He could still do odd jobs without affecting his pension eligibility.
[166] P.T. could not recall when he lived with his sister and her husband. He believed he stayed with them for some 10 to 12 years.
[167] P.T. acknowledged that he started living with P.P. and her husband in White Lake in 2012 or 2013. He recalled that his bedroom was in the basement. There was also a compact living area for him to watch TV and play his video games on both Xbox and PlayStation consoles.
[168] Initially, P.T. did not remember a couch in the basement.
[169] K.C. is P.T.’s great-niece. He saw her when she would come to visit over what he recalled was the March break and summer holidays. She came with her brother, W.C.
[170] There were times when P.T., P.P., her husband, R.P. and the children, K.C and W.C. would all be present in the house.
[171] K.C. did spend time with P.T. in the basement when she wanted to watch TV or play video games.
[172] P.T. denied adamantly that he ever:
a) took K.C.’s clothes off, b) engaged in sex with her, c) grabbed and threatened her, d) pulled her into his bedroom and did not permit her to leave, e) put a knife to her throat, f) threatened her with a gun, g) forced oral sex upon her, h) touched her in a sexual way, i) asked her to touch him sexually, j) used his penis to make any form of contact with her, or k) spent time alone with her.
[173] P.T. emphasized that P.P.’s husband, R.P., was always at home.
[174] P.T. confirmed that he took the photograph which was shown to K.C. of her and her brother, W.C., standing on a wire fence patting a horse. The farm where the horses were kept was down the road from where P.P. and her husband lived.
[175] P.T. recalled that K.C. was fascinated by horses. Behind the barn where the horses were kept was a pond where he would bring K.C. and W.C. to catch frogs as well.
[176] Additionally, P.T. would also take the children to a park, so they could go on the swings.
[177] P.T. had a gun cabinet with two 12 gauge shotguns and a 303 British Enfield rifle that he stored in it.
[178] P.T. had certificates to legally possess those weapons. He kept that documentary evidence locked in his gun cabinet along with his firearms.
[179] Under cross-examination, P.T. indicated that the property where the horses and the pond were, and where he would take K.C. and W.C. to catch frogs, was not far from where he lived with his sister and her husband. He could walk or bike there with the children.
[180] He knew that the date upon which he took the photograph was August 31, 2013. That date was automatically generated at the bottom of the screen of his device. He took no other pictures that day. His sister, P.P., did not like it when he took them of the kids.
[181] He explained that the reason he snapped that particular photograph was to show that he went out with the kids and they had a good day.
[182] P.T. wanted to have a picture to demonstrate that he had done something with the children, and to share it with their mother. He could not recall their ages at the time the photograph was taken.
[183] The place where he took the picture was out of sight of P.P.’s house. He added that the kids themselves did not like having their picture taken.
[184] He agreed that the photograph merely depicted one moment of one day he had spent with the kids. There had been many others when he had spent time with the children. They came often to P.P.’s home, when he lived there with his sister, who was, of course, their grandmother.
[185] When P.P. was not at home, the children would be in the house with P.P.’s husband, R.P., their grandfather, and him.
[186] P.T. recalled that R.P. was quite ill in the last years of his life. Nevertheless, he was still able to get up and move around.
[187] R.P. taught P.T. to hunt and to boat. At the end of his life however, R.P. could not do either. He stayed in his chair most of the time.
[188] When the children were downstairs with P.T., R.P. would come down once in a while to check on the kids and him. However, there were days when he was unable to do so, because he was feeling particularly sick or unwell.
[189] P.T. added that R.P. drank a lot. Beer was his alcoholic beverage of choice, although he did drink hard liquor as well. Arrangements were made for him to have what he needed in the upstairs’ refrigerator in the kitchen.
[190] When R.P. came downstairs, it was typically to check on the sump pump, or to retrieve something from the refrigerator or the freezers down there.
[191] P.T. testified that he had two shotguns and a 303 caliber rifle. He used the shotguns for small game or deer, but he preferred the 303 for deer hunting. He denied that he ever owned a pistol or even saw one. If his sister, P.P., said he had one, she was wrong.
[192] P.T. stated that he did not have knives he kept as weapons. He would use the ones in the kitchen, for example, to slice up some ham to make a sandwich for himself.
[193] P.T. repeated that he never sexually touched K.C., nor did he take her into his bedroom for that reason.
[194] He was not aware of a couch being in the basement at the time when the children were cared for by his sister at her home in White Lake, or when he lived there as well. If there was one down there, he explained, it was covered with boxes and not used for sitting on.
[195] Instead, P.T. had a big armchair that he would sit in to play his video games. He had a PlayStation and an Xbox to choose from. The kids, if they were in the basement with him, would sit on the floor with their backs against the arms of the chair, or on it with him.
[196] P.T. said that K.C. would be incorrect if she said there was a couch in the basement. His evidence later changed to a couch being there, but it was not easy to see, because it was covered in “boxes and stuff”.
The Law
[197] In a relatively recent, unreported case, R. v. C.S., I touched upon some of the core tenets of the criminal law. The facts in C.S. were similar in many respects to this case. It involved a child complainant and an accused father in a repeated, alleged sexual touching scenario. My observations in C.S. are again apposite here. I instructed myself as follows:
The Fundamental Principles
- In R. v. Ghomeshi, 2016 ONCJ 155 at paras. 120-124, Horkins J. reviewed the cornerstone principles, which apply to all criminal trials in Canada as follows:
“[120] 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 the central role in the determination of this matter.
The Presumption of Innocence
[121] The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental 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 particular 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
[122] 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.
[123] The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of "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”. However, to support a conviction in a criminal case, the strength of evidence must go much farther and 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.
[124] The expression proof "beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
- 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.
Assessing the Credibility of Child Witness
- As I approach my analysis of the evidence of [the child complainant], I must remind myself as well of the dicta of Lamer C.J.C., as he then was, at paragraph 47 in R. v. L.(D.O.) [1993] 4 S.C.R.
“In the case at hand, in the determination of what is fair, one must bear in mind the rights and the capabilities of children. As McLachlin J. recognized in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133: "... it may be wrong to apply adult tests for credibility to the evidence of children". Wilson J. expressed a similar view in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, in reference to the appeal judge's treatment of the child witness' evidence:
. . . it seems to me that he was simply suggesting that 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.”
- Further, as observed by Juriansz, J.A. in R. v. J.J.B. [2013] ONCA 268 at para. 70:
“[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:
[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…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.”
Reliability of Child Witnesses’ Evidence
- Similar to the assessment of credibility, I must disabuse myself of any notion of the inherent unreliability of a child witness’ evidence. As McLachlin J. stated, as she then was, at para. 23 in R. v. W(R), [1992] 2 S.C.R. 122:
“23 Before turning to the particular errors alleged, 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: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. 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.
Assumptions, Expectations and Stereotypes
- Any attempt by a trial judge to determine the manner in which a sexual assault victim ought to behave is fraught with problems. Paperney and Schultz JJ.A. in R. v. A.R.J.D. [2017] ABCA 237, (aff’d on appeal to the S.C.C., 2018 SCC 6, [2018] 1 S.C.R. 218), reviewed and explained the many flaws in logic and reason where courts have erroneously embarked down. This path at paragraphs 57 to 60 as follows:
“[57] “Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside”: R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant’s credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.
[58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. This record speaks to those reasons—the complainant resided in the home of the alleged perpetrator and in her words, it “changes everything . . . [w]hen people know”. While it might appear logical to suggest that a victim of sexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealing with a child complainant, is simply incorrect.
[59] In substance, the trial judge’s requirement that this child display corroborative evidence through expected confirmatory behaviour was akin to a throw-back to the long abolished and wholly discredited “rule” about warning juries of the danger of convicting in child sexual assault cases without corroboration of the victim’s testimony. Not only did this baseline of reasoning erroneously place an unfair burden on the complainant to provide such evidence, but the expectation was inextricably rooted in a stereotypical notion of how a typical child, and sexual abuse victim, ought to behave. Adding to this incurable defect was the trial judge’s failure to take into account the whole of the complainant’s testimony, through which she provided at least some evidence of how the alleged abuse had affected her—that she became a “closed person”.
[60] “As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668. The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’s acquittal.”
[198] I must, of course, apply a W.(D.) [1] analysis to the evidence adduced at P.T.’s trial. Clearly, the credibility of both P.T. and K.C. must be carefully assessed. Their reliability as historians for significant past events is very much worthy of consideration as well.
[199] Essentially, in applying the law, I must acquit P.T. if I believe his testimony regarding the incidents in question, after I assess the evidence as a whole. (see R. v. Hull at paras. 4 – 5)
[200] If I do not believe P.T., but his evidence nevertheless raises a reasonable doubt to my mind upon my assessment of the evidence in its totality, I must find him not guilty.
[201] Even if I do not accept the evidence of P.T., nor does it raise a reasonable doubt, I must still be convinced of his guilt beyond a reasonable doubt based on the evidence which I do accept, if I am to convict him.
Analysis
Do I believe the evidence of P.T.?
[202] P. T. was very much an unsophisticated witness. His defence was simply one of denial. He was unshaken in maintaining he did not ever inappropriately touch K.C. Of course, a blanket denial is difficult for even the most skilled cross-examiner to successfully unravel.
[203] The one seeming inconsistency to which the Crown could point was the change in P.T.’s evidence as to the existence of the couch in the basement over the material time frame.
[204] On my review of P.T.’s evidence, assessed against the backdrop of the other admissible evidence called at his trial, I cannot find that he demonstrated any carelessness with or disregard for the truth. To his recollection, the couch in the basement was covered with “boxes and stuff”. For him, its existence was irrelevant. The sexual abuse was said to have occurred on his bed in a different room within the basement.
[205] P.T. was clear that when he played video games in the basement, he did so while seated in an armchair. His credibility, to my mind, was enhanced when he put both children in very close proximity seated on the floor with their backs against the arms of the chair, or on the chair itself within his reach. P.T. did not shy away from having ample opportunity to have committed the offences with which he is charged.
[206] Nor did he deny that he took the children on excursions well out of sight of their grandparents’ home. Again, in my humble view, the risk would have been far less for him to have inappropriately touched K.C. elsewhere than the home he shared with his sister and her husband.
[207] In most every respect, the evidence of P.T. was clear and concise. If the horrible acts which K.C. says happened to her did not in truth occur, I do not see that P.T. could do other than to adamantly deny them. And that is exactly what he did.
[208] Upon my assessment of the totality of the admissible evidence, I have no basis for rejecting his denials.
[209] On the first branch of the W.(D.) test, I must therefore acquit him.
Does the evidence of P.T. raise a reasonable doubt?
[210] Having found I believed the evidence of P.T., it went much further than merely raising a reasonable doubt in my mind. I believed him. I found his denials to be credible.
On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in the guilt of P.T.?
[211] I need not turn my mind to this branch of the W.(D.) test, of course, having found P.T.’s denials to be truthful. However, I feel compelled to explain to K.C. why her evidence fell short in meeting the test of proof beyond a reasonable doubt.
[212] In assessing K.C.’s credibility, I did not sense that I was obtaining a full and candid account from her as to what P.T. supposedly did to her, as she recalled and described during her testimony, how he touched her for a sexual purpose. Her memory seemed to improve over time, from when she first spoke to police in January 2021, to later when she gave her evidence in October 2022. This evolution of her recollection left me quite unsettled.
[213] Firstly, I was troubled by K.C.’s failure to tell police when she gave her statement about any instance of anal rape. Constable Darraugh of the Renfrew OPP asked K.C. in a very open-ended fashion to tell her, as a female police officer, about what exactly P.T. did to her of a sexual nature. No mention was made of anal penetration, only vaginal.
[214] The defence learned only of an allegation of anal rape during P.T.’s trial. When confronted about the opportunity to tell police about it earlier, and her failure to do so, K.C. was initially evasive. She denied that the police ever asked her specifically about whether there had been anal sex, notwithstanding she agreed with having been given the opportunity to provide a complete account of what P.T. did to her. It seemed odd to me that she would have left these important events out when asked to chronicle for police all forms of sexual abuse to which she was subjected by P.T.
[215] Secondly, K.C.’s sudden ability to remember biting P.T.’s hand to escape an instance of sexual abuse was bothersome for me as the trier of fact. She made no mention of this to police. However, the memory of it came to her as she testified in Court. Again, she offered no explanation as to why it was a detail left out at first instance when she decided to go forward to police, but recalled apparently while giving her evidence.
[216] Omission of certain significant events on one occasion while referring to them on others constitutes, in my view, what can be very legitimately considered a material inconsistency. (see R. v. A.M., 2014 ONCA 769 at para. 12)
[217] I do not accept the Crown’s argument made at the conclusion of trial that a sexual assault complainant is inclined to be full, frank and open more so in Court than in a police interview room. The need for truth, accuracy and completeness would be impressed upon such a witness in both locations, I would hope.
[218] Thirdly, the quality of K.C.’s recollection was poor in a general sense. I made every reasonable allowance I could for the fact that she was a 16-year-old, young woman when she testified about events which occurred starting when she was approximately eight or nine years of age. K.C. cannot be expected to recount with exactitude each and every detail of each and every material incident. That would be impossible. However, as the significance of events increase, so too does the expectation for the trier of fact that a clearer recollection will have formed for those of greater import.
[219] Fourthly, I struggled to understand K.C.’s insistence that the gun used by P.T. to threaten her did not belong to her grandfather, R.P. K.C. was a young child when the events were said to have occurred. She had no interest in or familiarity with firearms. She did not know anything about her grandfather’s arsenal. She had never seen his gun cabinet in the basement unlocked and open.
[220] K.C.’s mother, R.C., testified that P.T. told her about his pistol. P.P. said she saw it on one occasion. Neither woman was asked to explain how the subject would come up in conversation with P.T., or in P.P.’s case, why he wished to produce it to her and her husband, R.P.. Nor did R.P. or P.P. question him about his desire or need to have one.
[221] At best, K.C.’s mother and grandmother can offer only minimal confirmatory evidence for the possibility that P.T. owned a pistol.
[222] I am far more inclined to believe P.T.’s evidence that he did not own a pistol of any sort. He was a hunter. He readily admitted to owning long guns, but common sense, logic and reason would suggest to me that he would have no practical need for a handgun. Neither P.P. nor R.P. described him as someone who had a fascination with, or even an avid interest in guns.
[223] In assessing K.C.’s ability to accurately recall and recount events from her childhood, I do have concern too for the reliability of her evidence. She could not remember visiting the horses at all during her excursions with P.T. and her brother, W.C.
[224] Her grandmother, P.P., remembered horses being kept by a neighbour close to where she lived while offering daycare to her grandchildren, K.C. and W.C. P.P.’s evidence suggested as well that the children’s outings with P.T. were not uncommon.
[225] However, when K.C. was shown the photograph of her brother and her patting a horse, and could see herself depicted in it, she still could not recollect anything from that day.
[226] I accept from P.T.’s evidence that the actual day was August 31, 2013. At that moment, K.C. would have been 6 years of age. I also believe P.T.’s testimony that K.C. was fascinated by horses. Yet she seemed herself to remember nothing of her visits during her childhood to see the horses.
[227] I do not hold K.C. to the same standard as a reasonable adult in assessing her evidence for credibility and reliability. However, I can never lower the standard of proof by which I must test the Crown’s case against P.T. (see R. v. H.C., 2009 ONCA 56 at para. 42, R. v. B.G., 1990 SCJ No. 58 at para. 48).
[228] In sum, treating K.C.’s evidence as fairly as I can, and contrary to the Crown’s view urged upon me in closing submissions, I found it to be far from compelling.
[229] Upon my assessment of all the admissible evidence in this case, I cannot be sure that there were any instances of anal penetration or biting. K.C.’s willingness to add events of such significance for the first time at trial, when she knew police wanted as many details as she could remember when she first spoke to them, negatively impacts her credibility. Further, it affects and causes me to doubt the veracity of the other things she said P.T. did to her.
[230] In short, even if I had not believed P.T.’s testimony, or found it did not raise a reasonable doubt to my mind, I still would have been dutybound to find him not guilty in applying the third branch of the W.(D.) test. I was not at all convinced of P.T.’s guilt beyond a reasonable doubt after a complete review of the evidence called at his trial.
[231] I place no weight on the delayed disclosure of the alleged sexual abuse by K.C. There is a multitude of unassailable, good reasons why a sexual assault complainant would not wish to come forward. Sadly, the airing of demeaning events in a public forum is a sufficient disincentive for so many legitimate complaints never to see the light of day. (see R. v. D.D., 2000 SCC 43 at para. 65, R. v. Lacombe, 2019 ONCA 398 at paras. 41 - 42).
[232] Nor was I persuaded by defence counsel’s submission to disbelieve K.C. due to a lack of corroboration. Her parents’ or grandmother’s failure to see changes in her behaviour, or the absence of physical evidence, such as blood or semen on her underwear, is not surprising, even if I were to assume she had been sexually violated. (see R. v. Lacombe, supra at para. 45) K.C. herself did not say she bled, or felt any wetness in her mouth, vaginal or anal areas after P.T. allegedly put his penis in those parts of her body. I cannot infer, if that is what defence counsel was inviting me to do, that there must have been an injury suffered by K.C. at some point causing her to bleed, given her young age at the time, or that semen must have been deposited on her clothing by P.T. in some manner, if the acts of fellatio and penetration said to have been forced upon her, were true.
Conclusion
[233] For the above reasons, and setting aside the delayed reporting and the lack of any corroboration, I must still find P.T. not guilty.
DATED: March 9, 2023
March, M.G., J.
Endnotes
[1] R. v. W.(D.), [1991] 1 SCR 742
A trial judge might well instruct the jury on the question of credibility along these lines:
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.