WARNING

The court hearing this matter directs that the following notice 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Ontario Court of Justice

DATE: 2023 06 01 COURT FILE No.: Brampton YCJA 21 - 144

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.B.S. [1]

Before Justice G.P. Renwick

Heard on 29 and 31 May and 01 June 2023 Reasons for Judgment released on 01 June 2023

Counsel: E. Beaton.................................................................................... counsel for the Prosecution M. Izadi...................................................................... counsel for the Young Person, S.B.S.

Reasons for Judgment [2]

RENWICK J.:

Introduction

[1] The Young Person faces three allegations of sexual assault upon his younger cousin, the complainant, who is close in age, while they were both minors. One allegation involves partial penile-vaginal penetration. The other two allegations involve sexual touching of the complainant and non-consensual masturbation of the Young Person.

[2] To protect the identity of the family members involved, for the purpose of these reasons, I will refer to the complainant by the initials, “A.B.” (not her actual initials). All other witnesses will be referred to by their relationship to the parties.

[3] The evidence for this brief trial took place over two days while closing submissions were heard earlier today.

[4] The only live issue at trial was whether the allegations are proven beyond a reasonable doubt. Secondary to this issue is whether the Young Person’s evidence raises a reasonable doubt.

Legal Principles

[5] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Young Person committed an offence, he will be acquitted of the charge.

[6] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during a trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [3] If after considering all of the admissible evidence, I am sure that the Young Person committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have considered the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify and communicate their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[8] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are significant or inconsequential to the case. If an inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[9] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 - 22 Canadian Criminal Law Review 31.

[10] Justice Paciocco breaks down the W.(D.) principles into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Young Person, I cannot convict him;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Young Person, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Young Person must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Young Person should not be convicted unless the evidence that is given credit proves the Young Person’s guilt beyond a reasonable doubt.

[11] Also, I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to determine the value of a particular witness’ testimony because of her station in life or her role in the proceedings. That would be unfair, and it would completely undermine the presumption of innocence and the duty of the court to act impartially. Regardless of a witness’ role, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.

[12] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[13] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, to review the exhibits, and to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.

The Evidence and Findings of Fact

The Testimony of the Complainant, A.B.

[14] A.B. was an impressive witness. She testified in an uncomplicated way, without emotion, apparent exaggeration, or apparent bias or animus. She was completely credible as a witness.

[15] A.B. described her relationship with the Young Person, and the closeness of their two families, until she disclosed “everything” [4] to her mother, the Young Person’s aunt, in April 2020.

[16] A.B. testified about three separate incidents of alleged sexual assault perpetrated by her cousin, the Young Person.

[17] In her examination in chief, the complainant told the court that the first assault occurred in Niagara Falls. The Young Person allegedly got into the hotel bed with her, while her younger siblings were in the other bed beside them and her younger cousins were asleep in the living room area. She described how the Young Person started touching her and then he “kinda like took my hand” and made her “kinda like jerk him off.”

[18] The complainant gave a reasonable amount of detail to this incident, in terms of body positions, timing, duration, and how things ended. I never heard which hand was used, nor any description of the alleged bum and chest touching by the Young Person. In fact, when asked in chief about the alleged initial sexual touching, the complainant responded, she did not exactly remember how her bum and chest had been touched.

[19] The second event, chronologically, was the “laundry room incident” (counsels’ description, not the witness’). The Young Person again allegedly came from behind the complainant in her laundry room, pulled down her pants, held her waist tightly, and partially penetrated her vagina with his penis despite her protests (“stop, ow, you’re hurting me”). This alleged event apparently ended when her younger brother (closest in age) was heard coming down the basement stairs.

[20] The last allegation involved an event similar to the Niagara Falls hotel incident. At their Aunt’s home, following the Young Person’s 17th birthday party, he crawled into the area under a bed where the complainant had slept, “grabbed” her hand to make her masturbate him, before he ejaculated on her hand and then left to go to the bathroom.

[21] Cross-examination revealed some minor inconsistencies on peripheral issues (who slept on which bed after the birthday party, whether the hotel bedroom door remained opened all night, where the complainant’s youngest sibling was while the adults went to the casino, whether the interrupting younger brother was actually looking for the complainant and the Young Person, among others).

[22] In the end, I am not troubled by the inconsistencies in the complainant’s testimony for several reasons:

i. Overall, I found the complainant to be unbiased as against her cousin, the Young Person;

ii. The complainant’s justifications for minor discrepancies in her evidence seemed reasonable (she had not fully reviewed her police statement before testifying);

iii. The complainant appeared to be truthful at all times;

iv. The complainant’s evidence was plausible in all respects;

v. The complainant appeared to want to correct things in her evidence (one example is found during her cross-examination when she readily corrected herself that the Young Person’s sister was in fact sleeping on the higher mattress above her at their Aunt’s house);

vi. The complainant never argued with defence counsel; and

vii. The complainant readily accepted that there were differences in her testimony when viewed with other pieces of evidence.

[23] This finding does not diminish the import of some of the inconsistencies within the complainant’s testimony. These inconsistencies (the Young Person’s sister’s evidence that he never entered the hotel bedroom during the relevant time, the hotel bedroom door remained opened) and others (which event was first: Niagara Falls or the laundry room, and whether the siblings were awake or asleep during the third allegation) cause me to have reliability concerns with the complainant’s testimony.

The Testimony of the Young Person

[24] The Young Person’s testimony was also credible. There were no grand flaws in his evidence. He denied that any sexual activity took place during the alleged events.

[25] The only part of the Young Person’s testimony that was inconsistent was whether his youngest cousin, the complainant’s youngest sibling, was present in Niagara Falls. His mother’s testimony, his sister’s testimony, and the complainant’s testimony all satisfy me that the Young Person is simply mistaken when he testified that his (then) baby cousin was not present.

[26] Respectfully, I disagree with the prosecutor regarding the apparent implausibility of the Young Person’s evidence that the younger cousins were moving between hotel rooms while the parents were at the casino. This seems entirely plausible given the number of children, their ages, and the lack of parental supervision.

[27] To be clear, this does not mean that I accept all of the Young Person’s evidence, including that he was never in the complainant’s bedroom during the relevant time period, even though this was corroborated by his sister’s testimony.

The Testimony of Other Witnesses

[28] I accept that the Young Person’s family members who testified (his mother and sister) were trying to be truthful. Their evidence while helpful, was not determinative of the allegations. Of all of the witnesses who testified, the Young Person’s younger sister’s testimony was the most credible. However, given her concerns at the time (babysitting three very young children), she may simply be mistaken that her brother never entered the complainant’s hotel bedroom during the relevant time period.

Analysis

[29] As indicated earlier, the complainant was a good witness. Her testimony is compelling. Her account of the material points was mostly left unshaken and undisturbed after significant cross-examination. Though there are reliability concerns, they did not rise to the point that I can easily dismiss the complainant’s testimony as untrue. In the end, I accept that A.B. honestly believed her accounts of these allegations and she made every effort to be truthful in her testimony.

[30] In light of the complainant’s testimony, the defence theory (these alleged assaults never took place) is a less tenable position than another possible defence: the sexual activity took place and it was consensual, or there was an honest but mistaken belief in consent. This was an easier path not travelled and the Young Person maintained his denials. His testimony was not far-fetched or implausible.

[31] The Young Person need not provide any motive on the part of the complainant to fabricate, nor was any motive suggested. In fact, both families appear to have lost a lot as a result of these allegations, which is unfortunate for everyone. Perhaps in time, the families can reconcile with an understanding that everyone is entitled to possess their own beliefs about what happened between these two cousins, which is secondary to the importance of forgiveness and family harmony.

[32] In the final analysis, although I accept the complainant’s evidence, I am also satisfied that all of the defence evidence along with gaps in the evidence raise a reasonable doubt about these allegations.

[33] The reasonable doubt resides in the following pieces or gaps in the evidence:

i. The Young Person’s testimony: his demeanor, presentation, willingness to admit that there were things that he did not know, his equanimity while testifying, and his balance while speaking about the complainant. Overall, he was almost as believable as the complainant;

ii. The lack of evidence from other family members who were present in the cousin’s bedroom after the birthday party or near the laundry room at the relevant time; [5]

iii. The apparent inconsistency [6] of the complainant’s mother’s understanding of the nature of the allegations; and

iv. The apparent inconsistency in the complainant’s testimonies that she told her mom “everything,” despite her admission during cross-examination that she did not provide any details to her mother (for two reasons).

Conclusion

[34] This was not an easy decision for the court. Both counsel presented compelling evidence for each side. All of the witnesses were mostly believable and reliable. The outcome reflects the fundamental tensions in criminal litigation. The truth of an allegation is not always enough to overcome a residual, reasonable doubt.

[35] In this case, despite the able efforts of the prosecutor and the compelling testimony of A.B., the three allegations have not been proven beyond all reasonable doubt.

[36] As a result, S.B.S. is acquitted of all counts.

Released: 01 June 2023 Justice G. Paul Renwick

[1] S.B.S. is a “young person” as defined in s. 2 of the Youth Criminal Justice Act. [2] Pursuant to s. 486.4 of the Criminal Code, there is an Order prohibiting disclosure of information that may identify any complainant or witness in these proceedings. [3] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [4] The significance of this piece of testimony will become apparent toward the end of these reasons. [5] This is not to be critical of the prosecution: others may not have had any actual evidence to give. [6] To be fair, the complainant’s mother did not testify. It is unknown exactly how the apparent inconsistency arose and the full significance of the inconsistency.