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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 01 30 COURT FILE No.: Brampton 3111 998 21 1696

BETWEEN:

HIS MAJESTY THE KING

— AND —

G.C.

Before: Justice G.P. Renwick

Heard on: 29-30 January 2024 Reasons for Judgment released on: 30 January 2024

Counsel: N. Naresh.............................................................................................. counsel for the Crown Y. Obouhov.......................................................................... counsel for the Defendant G.C.

RENWICK J.:

Introduction

[1] The Defendant was charged with sexual assault and sexual interference for allegedly touching the 15 year old daughter of his then girlfriend (now his common law partner) on one occasion in 2014.

[2] The prosecution proceeded by indictment and the Defendant elected to have a trial in the Ontario Court of Justice.

[3] This brief trial, which began yesterday and completed today, took approximately three hours to complete. There were three witnesses, but the parties agreed that the complainant’s fiancé’s testimony was unhelpful. The complainant testified for the prosecution. Her mother, now the Defendant’s common law wife, testified for the Defendant. No exhibits were filed.

[4] The sole issue for determination is whether the allegations are established to the requisite degree. This will entail a consideration of credibility and reliability, and whether the prosecution’s high burden is met.

[5] These reasons will explain why I cannot convict the Defendant despite the testimony of the complainant, which was compelling.

Governing Legal Principles

[6] 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 the alleged offence beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant intentionally touched the complainant for a sexual purpose, he will be acquitted of the charges.

[7] 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. [1] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence and I am not left with any reasonable doubt, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or some reasonable doubt remains, then the charge has not been proven to the required degree and an acquittal must follow.

[8] 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. [2]

[9] 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.

[10] Given the Defendant’s partner’s 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.

[11] 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 Defendant, I cannot convict him;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant 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 Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[12] Also, I have reminded myself to treat the evidence of both 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 or status, I must apply even scrutiny to all of the evidence to determine the facts in the proceedings.

[13] 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, motive, and the witness’ ability to recall and communicate.

[14] I will not recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and several opportunities during the trial and subsequent to the completion of the submissions to review my notes and to review 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

The Testimony of the Complainant

[15] Overall, I find that the complainant was believable. She presented as a careful witness who endeavoured to listen to the questions, she admitted things that did not paint her in a good light, and she appeared to testify truthfully.

[16] The complainant described having been at her uncle’s townhouse sometime in 2014. She was 15 years old and her mother and the Defendant had begun dating several months prior, but they had not yet moved in together. The time of year was not established with any certainty, but it could have been the early part of the year or the summer.

[17] The complainant testified that alcohol was being consumed, which was “just what we would do” during such a visit. By her account, the entire family, including her and her cousins, were “partying.” When she went to sleep that night, she went to one of the bedrooms upstairs. She fell asleep on the bed alone. When she awoke, it was because the Defendant had his “hands” down her pants. The complainant explained that she slept on the far left of the bed against the wall, her mother slept in the middle facing away from her, and the Defendant was on the right side of the bed facing her mother. Eventually, she awoke due to the sexual touching and she could hear her mother and the Defendant kissing. She believed that the Defendant had reached over or around her mother while they were kissing in order to put his fingers down her pants and onto her vagina. The Defendant moved his fingers around her vagina and although they did not go inside her, it was “close enough.” This lasted for not longer than “a minute and a half, two minutes.” It ended when the Defendant got up to use the bathroom and she told her mother what had happened. She was crying. Her mother apparently confronted the Defendant and said that he “broke” her heart. The complainant did not remember any other conversation that followed as “I think I kinda just blacked out afterwards.” The next day before they went home, she could not remember where or when but her mother told her “you know, I’m just gonna stay [with the Defendant]. He’s just gonna quit drinking liquor.”

[18] In terms of details, during her examination in chief, the complainant could not say which or who’s bedroom she was in, how many bedrooms there were, what other furniture may have been in the bedroom, what size the bed was, what “pants” she was wearing, what the sleeping arrangements were after she had told her mother about the alleged assault, whether or not she had been drinking alcohol (although it was a “possibility”), whether she had consumed beer prior (although “probably” that’s what she would have had), and whether she had told her best friend about this incident.

[19] During cross examination, the complainant was unclear in the following areas: how long they stayed at the townhouse that weekend; whether she used the word “hands” when describing what had happened to the police; whether she had asked her mom for $20 a few months after the alleged assault; how many times she referred to the Defendant as a “pedophile” to her mother; or whether that happened a few times when arguing with her mother.

The Testimony of the Complainant’s Mother

[20] The complainant’s mother testified for the Defendant. She told the court that she has been in a relationship with the Defendant for almost 11 years. She recalled an incident at the townhouse where her brother had been living, during a summer long-weekend.

[21] Drinking was involved. The teenagers were all in the basement “having their fun” while she and the other adults remained in the living room. She thought that her daughter, the complainant, “had one or two [drinks].” Around 12 or 1 am, she went to bed with the Defendant. She was “kinda” in the middle of the bed, with the Defendant, who “takes over the whole bed,” was on her left if she was lying on her back. She slept on her side and she thought that the Defendant slept behind her, but she did not remember. At some point, she woke up. The Defendant was standing beside the bed, saying, “I’m sorry.” She then hugged her daughter and fell back asleep. When she awoke in the morning, her daughter was gone and the Defendant was sleeping on the floor beside the bed.

[22] The complainant’s mother further testified that nothing was said to her by her daughter about what had allegedly happened. Months later, when her daughter texted her for $20 and she said no, her daughter began calling the Defendant a pedophile. This happened at least twice. During the covid pandemic lockdowns, there was an incident when her daughter came over to their home, against their wishes, the Defendant raised his voice, and her daughter left “screaming” down the hall before texting that the Defendant was a pedophile. For her part, the complainant’s mother believed that her daughter had “never” described the alleged sexual touching to her. Her daughter was an “out of control” teenager who was not in school during this timeframe. Also, she never thought to ask her daughter why the Defendant apologized, as “we had a good weekend.”

[23] In cross examination, the complainant’s mother admitted that she had given her statement to the police after they had “tried” to call her and eventually came to her work in March 2021. She “kinda” had an idea why the police wanted to speak with her and put it together when they began to question her. She could not remember if her younger son was present at the townhouse during the weekend in question. Her testimony added that people were drinking “a lot of beer.” She admitted having “probably” eight cans of beer throughout the day. She described herself as a seven or eight out of ten on a scale from sober to intoxicated and she felt drunk when she went to bed that night. She testified that the Defendant probably drank more beer than her, but because it was “too long ago” she could not be certain that no liquor had been consumed. The complainant’s mother also testified that the Defendant, among others, was also drunk that day.

[24] Also, during cross examination, the complainant’s mother testified that her daughter had not been in the bed when they went to sleep. When she awoke, the Defendant was standing with his hands behind his back and he said, “I’m sorry.” She described having “grabbed” her daughter, “cuddled her” and going back to sleep. When she awoke in the morning her daughter was gone and the Defendant was asleep on the floor. She was very clear on her memory and did not believe she was still drunk when this commotion took place in the middle of the night.

[25] The witness was referred to her statement to the police about the conversation she had had with the Defendant the next morning. She had asked the Defendant “what the hell” had happened “last night.” At one point she told the police, “He said, “I don’t know,” and I can’t remember, but I think, think [the Defendant] said something like, he told her like “I’m sorry,” whatever, and she accepted it, and we never talked about it again.” Although she agreed in cross examination that she had thought that something had happened that warranted asking the Defendant about it the next day, she accepted his answer, “because I didn’t think it was a big deal.”

[26] At the end of her cross examination, she was asked about whether the Defendant said that he may have touched the complainant’s bum. The testimony was as follows:

Q: …was there any conversation between you and [the Defendant] about, or [the Defendant] said to you that he, he may have touched [the complainant’s] bum?

A: Ya. ‘Cause he doesn’t know what happened, ‘cause doesn’t remember, so.

Q: Okay. Can you tell me about that. Did he say something to you, that he may have done that?

A: Yes.

Q: Okay, what did he say?

A: He said, “I dunno. I might have maybe touched her bum or something.

Q: So, when did he say that to you?

A: I don’t remember.

[27] For reasons that will become clear below, I did not believe all of what the complainant’s mother said while testifying.

Analysis of the Evidence

[28] Triers of fact must consider both credibility and reliability in determining whether the allegations are proven beyond a reasonable doubt. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which we evaluate the accuracy of evidence.

[29] It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns rule the analysis because credibility does not guarantee accuracy.

[30] While credibility is not a proxy for reliability, [3] where the evidence is highly credible, consistent, plausible, not inconsistent with other evidence, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, accuracy is likely established.

[31] In many instances, I found that the complainant was honest about things that could affect her reliability:

-she was already “done with them” and had no relationship with her mother, well before her decision to go to the police about this allegation; -she had likely consumed alcohol before the sexual touching; it would not have been her first time; she drank about two to three times weekly, back then; she began drinking when she was 13 years old; and at age 15, she also drank liquor; -she had stolen and crashed the Defendant’s car, causing it to be written off; -she had thrown her mother’s dog against the wall and destroyed the shoe rack; and -those were not “reasonable” reactions to being told to leave the Defendant and her mother’s home during the pandemic.

[32] Her honesty in these areas increased the likelihood that she was being truthful with the court and reinforced the view that she was a credible witness.

[33] The complainant, like all witnesses, was imperfect. Although this alone does not disqualify an acceptance of her evidence, there were reliability concerns that were never fully extinguished.

[34] In cross examination, the complainant was asked how long she has not been communicating with her mother. She answered, “Since I told her, so, 2020.” It was confirmed that the complainant last spoke with her mother during the visit to the Defendant’s apartment during the covid pandemic lockdown, sometime around April 2020. This injected doubt that the complainant had “told” her mother about the allegation immediately after it had happened.

[35] Also, the complainant initially claimed that she had “pushed” her mother’s dog during this confrontation in April 2020. It was twice put to her that she had thrown the dog, before she finally admitted it.

[36] Furthermore, in terms of a possible motive for untruthfulness, there was one: The complainant viewed her mother as having sided with the Defendant, thus making the complainant out to be a liar. Unfortunately for this family, their relationship remains non-existent to this day. Given this reality, this possible motive to fabricate or exaggerate the nature of any touching never completely evaporated.

[37] In the end, although I accept as believable what the complainant said about the improper touching, I am left with lingering reliability concerns that impact the forensic value of the complainant’s narrative. Although believable, the complainant’s testimony was not entirely reliable.

[38] To say that I had reliability concerns with the testimony of the complainant’s mother is an understatement. She remained arms-crossed throughout her cross examination and needed to be reminded twice of the contents of her statement to police, to correct parts of her testimony.

[39] I also found that this witness’ evidence was implausible. There was no explanation for why she grabbed her daughter, hugged her or cuddled her, and went back to sleep, in the midst of such an unusual event. However, her testimony that the Defendant had apologized to the complainant before returning to sleep on the floor was also significant.

Ultimate Findings of Fact

[40] The Defendant submits that it was physically impossible for him to have reached around the complainant’s mother to sexually assault the complainant. I reject this submission. By all accounts, the bed was not large. The complainant’s mother testified that the Defendant took up most of the space. The three were lying closely together. I accept as accurate the complainant’s descriptions of the confines and the directions everyone was facing as she awoke. I find that it was entirely possible for the Defendant to have put his left hand down the pants of the complainant as he kissed and embraced her mother.

[41] The Defendant also submitted that the evidence also lends itself to another explanation: accidental touching. Though this may seem implausible, I accept that this is possibly what happened for several reasons:

i. Though the complainant did not testify to this, I find that at some point during the interaction that night, the Defendant apologized to the complainant and resumed sleeping on the floor;

ii. The complainant could not recall what pants or bottoms she was wearing as she slept. She did not testify about the presence or absence of underwear. Given the proximity of the parties, if she had been sleeping close to her mother, it is possible that the Defendant’s hand brushed her vagina or slipped inadvertently into her pants rather than her mother’s; and

iii. The Defendant admitted to the complainant’s mother that he may have touched the complainant’s “bum or something.”

[42] I have assessed whether the evidence as a whole leaves me with a reasonable doubt about the allegations. After a careful and reasoned analysis of all of the evidence, bearing in mind the facts that I have found, the factual findings I am unable to make, and the submissions heard, I find that the evidence does leave me with a reasonable doubt.

[43] I am not so certain of the complainant’s evidence, though it is accepted by me, that it displaces the residual doubt that arises on the evidence. The complainant’s mother, though mostly unbelievable as a witness, was likely truthful in several respects. Her evidence confirmed that something occurred between the Defendant and the complainant, the Defendant apologized to the complainant, the Defendant changed where he concluded sleeping that night, and the Defendant eventually admitted that he may have touched the teenaged complainant in area that he should not.

[44] The time that I have spent to consider and write about this trial has taken longer than the trial itself. This was not an easy decision to reach. I have a strong suspicion that what the complainant described actually took place. But that is not enough to displace the presumption of innocence or to discharge the prosecution’s high burden of proof.

[45] On the basis of my acceptance of the testimony of the complainant, my partial acceptance of the testimony of her mother, and the questions that remain, I am left uncertain of the Defendant’s guilt in respect of the allegations before the court.

Conclusion

[46] For these reasons, G.C. is found not guilty of sexual assault and sexual interference as alleged on Information 3111 998 21 1696.

Released: 30 January 2024 Justice G. Paul Renwick

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [2] R. v. J.H.S., 2008 SCC 30 at para. 10. [3] R. v. H.C., 2009 ONCA 56 at para. 41.