WARNING

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

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

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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

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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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

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

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

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

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

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

ONTARIO COURT OF JUSTICE

DATE: 2024 01 22 COURT FILE No.: Pembroke 22-Y3720001

BETWEEN:

HIS MAJESTY THE KING

— AND —

QF

Before: Justice J.R. Richardson

Heard on: April 6, 26, July 12, 2023 Reasons for Judgment released on: January 22, 2024

Counsel: Matthew Brown................................................................................... counsel for the Crown Joshua Clarke............................................................................ Counsel for the defendant

RICHARDSON J.:

Introduction

[1] QF is charged that he did between the 31st of July 2021 and 1st day of August 2021 at the Town of Arnprior assault MH contrary to section 266 of the Criminal Code. QF was a young person at the time that he committed the alleged offence.

[2] I was advised at the outset of the trial that date, time, place and jurisdiction was admitted.

[3] This case involves the assessment of credibility and reliability and the application of the W.D. formulation. Defence also argues that there was collusion and inadvertent tainting.

Evidence of MH

The Section 715.1 Voir Dire

[4] MH was 17 years old at the time of her evidence. She was in Grade 12.

[5] On consent, a videotaped statement which she gave in June of 2022 to the police was played in court and admitted into evidence pursuant to section 715.1 of the Criminal Code. During the voir dire, she recalled giving the statement and she indicated that she told the truth.

[6] MH stated that she took a piece of paper which was her “story” to the police station when she attended. She wanted the piece of paper to make sure that she did not leave important things out during her police interview.

The Section 715.1 Statement

[7] The videotaped statement begins with the officer asking MH what brought her to the station. MH indicated that she had a friend of a friend who had something happen with the accused. This other person felt that no one would believe them, and she needed “back up”. This is what led MH to go to the principal to tell her story. She also said that she was now ready to discuss this with the police.

[8] MH then asked the officer whether the officer would like her to read her story. In doing so, she was referring to notes that she brought with her. The officer told her to do whatever made her feel more comfortable.

[9] MH stated that she has known QF since they were both in Grade 3. She stated that during the summer they grew closer because she liked a boy that QF was friends with and eventually started a relationship with that boy. Because of the mutual association with the boy she liked, she and QF started hanging out. She would go to QF’s house and hang out with him alone.

[10] On July 31, there was a pool party at her friend C’s house. QF was one of the persons at the pool party. She recalled that during the pool party, the others told MH that she should break up with the boy that she was in a relationship with. She was also attracted to one of the boys there (not QF). While they were all in the hot tub, MH texted the boy and told him that the relationship was over.

[11] After that, she left to go to work.

[12] When she returned home from work, she received a text message from a friend who asked her to hang out with a group of friends at QF’s. MH told her friend that she could not hang out, but she would “sneak out” and go out later.

[13] MH stated that she texted QF on Snapchat and asked if she could come over. He told her, “Yeah, whatever.” After that, she received another text indicating that a dog attacked one of the girls at QF’s and she had to go to hospital. They also told her that after they went to the hospital, they all intended to return to Q’s house.

[14] MH stated that her phone was equipped with a program called Screentime which shut all the applications on her phone off at a certain time. As a result of this, she had no way of contacting anyone.

[15] She waited and then she “snuck out” and went to QF’s house. On arrival, she knocked on his door. No one but QF was there. She asked him where everyone was and he told her that the dog had bitten one of the girls and no one came back.

[16] MH and QF proceeded to hang out and watch tv. QF also played a video game and MH watched. They also smoked marihuana together. She laid on his bed while all this was occurring. This was not unusual. Every time she hung out with QF at his place, she lay on his bed.

[17] MH started to play a game on her phone. While she was doing this, QF came into the room and smoked some marihuana. He lay on the bed next to her. She did not see a problem with that. She told him, “I’m going to go home after I beat my score.”

[18] She noticed that QF started to get closer to her. He put his head on her shoulder. She stated that she did not want to say anything because he had never shown interest in her. She didn’t think anything of it. She also didn’t want it to seem like there was a situation when there wasn’t.

[19] She then beat her score on her game and announced that she was going to go home.

[20] He told her to stay until 4:00. She reiterated that she intended to go home.

[21] He then pulled her face toward him to kiss her. She kissed him back “for like two seconds.” When MH was asked how she felt during the kiss, she stated, “I felt like do it. Get it over with. Just do it. Just it will be done. Just go fast and then leave.”

[22] She then pushed him off and thought that was all he wanted. She went to push herself off the bed and QF grabbed her, threw her on the bed and got on top of her. He straddled her and held her arms down. He had a smirk or a smile when he looked at her. She said, “it was the scariest moment of my life.” At this point, she realized that he wanted to “do more.”

[23] She decided that she was not going to let him do that because he was a scary and intimidating guy and a “dominant male”.

[24] She estimated that he was on top of her for about five seconds.

[25] She then said, “I’m leaving.” QF said, “Fuck you, you’re staying till 4:00.” She said “No, I’m not”. She then walked to his door to leave. He got in front of the door and told her that she could not leave. She said, “Yes I am”, pushed him out of the way and left.

[26] She stated that after she pushed him, he stood there and watched her. She felt like “it kind of clicked with him” that something was not right.

[27] She made it clear that when she was referring to QF’s house, she was referring to his mother’s garage, which is where he lived. He had couches, a tv and a bed in the garage.

[28] During that summer, she would hang out with him every week.

[29] All of this happened between 2:00 and 3:00 am on August 1.

[30] The officer asked MH what happened after. MH told the officer that her friend PS’s “sexual assaulter” is friends with QF. MH said that this friend is still “targeted” by others in her peer group. Because of her friend’s situation, MH was concerned that everyone would think that she was lying. She stated that she knew of other situations involving QF going back to Grade 8. MH stated QF told her that these other situations were not true and she always believed him. Now that it happened to her, she felt really embarrassed for trusting him.

[31] MH stated that because she “snuck out”, she did not feel she could tell her mother. She felt like she had no one to talk to. She told her friend PS that evening. She also told her friend C and the boy that she was dating. She also told her friend H because “she also went through it.”

[32] MH stated that she told her mother about it roughly three weeks after the incident happened.

Evidence of MH in-Chief – Outside the Ambit of the 715.1

[33] She testified that the incident in question took place in the garage. She said that she was pushed on the bed and grabbed from behind by QF. She stated that he used his arms to lift her. She stated that she was not okay with him touching her in this way. She also stated that she was not ok with him being on top of her.

Cross-Examination of MH At Large

[34] MH understood the importance of going to the police. She also understood that if she thought of anything further, she could reattend at the police station.

[35] With respect to her notes, she indicated that they were one page which she prepared the day before she went to the police station. She denied speaking to anyone else about what was in her notes prior to making them. She agreed that there were a couple of points during the interview where she looked at her notes. She explained that she had a “memory thing”, and that she confused her “ams and pms”. She elaborated that it wasn’t really a problem with memory, but she has dyslexia. She said that sometimes she cannot focus on when things took place.

[36] The notes were not available at trial. The officer did not seize them.

[37] She recalled that she was “pretty sure” that she wrote her notes in sentences as opposed to point form. She could not remember whether she prepared it in single space or double spaced. She stated that it was not her intention to give her notes to the police. She just had them for the purpose of refreshing her memory.

[38] MH agreed that on the date in question she went to his house voluntarily. She was expecting other friends to be there. She was surprised that no one other than QF was there. Despite this she chose to remain with him in the garage. She agreed that she had no reason to be afraid of him. It was summertime, and her hours were different from the school year.

[39] She recalled that she saw him regularly that summer, as often as three days week. She agreed that he provided her with drugs. They smoked marihuana every time they got together. Although she had known QF for years, she said that they were never close. They became closer during the summer. They went to the same school and had mutual friends. They would see one another at birthday parties.

[40] She recalled on the date in question that they were hanging out with a crew of people, and she then went to the grocery store for her four hour shift. She finished work at about 8 or 9 pm. She then went home. She recalled that she was home for about an hour and a half with text messaging capabilities. After that a “screen time program” kicked in on her phone and reduced her access until about 11:00 pm.

[41] When she got home, she learned about the dog bite incident at QF’s house.

[42] Before her screentime program kicked in, she exchanged communications with QF and asked if she could go over. She believed that the others were re-attending at QF’s residence after the hospital.

[43] She reiterated that she did not arrive at QF’s until about 2 am. She stated that she was not looking at her watch, however. She then corrected herself and said that she usually snuck out at 12 or 1. She stated that she remembered looking at her phone when she was leaving, which was around 4:30 am.

[44] She agreed that she has been at QF’s many times. She could not indicate the exact address, but she stated that she knew how to get there. She indicated that in order to get to the garage where QF’s room was, one went straight up the driveway. She stated that when she arrived, she asked where everyone was and QF told her that they had left to go to the hospital with the girl who was bitten by a dog.

[45] She agreed with defence counsel’s suggestion that it took some effort for her to get there. She decided she might as well stick around. She stated that her intention in sticking around was to smoke marihuana. She agreed that this was a regular occurrence.

[46] MH agreed that every time she hung out with QF, she laid on the bed. She was never intentionally alone with him before. The only reason that they were alone this night was because they were waiting for the others to come over.

[47] She agreed that the bed was up against a wall in the corner of the room. To get off the bed, QF would have had to climb over her.

[48] She recalled that when the incident occurred, she was playing a game on her phone, which she described as a trampoline game. She said that she was lying on her back. She was distracted by the game. She stated that the only conversation she recalled was when she told QF she was going to go home after she beat her score in the game.

[49] He asked her to stay until 4:00.

[50] MH agreed with defence counsel that she could have told him to go sit somewhere else other than on the bed. She stated that “I didn’t want it to seem like something it wasn’t.” She interpreted his cuddling her as affectionate, not sexual. She stated that because he was a friend, she did not want to make it awkward.

[51] She agreed that he “pulled her face in for a kiss”. She reciprocated the kiss. At this point she pushed him away and stopped it. She agreed that he did not ask for the kiss. She stated that she decided that she would “just reciprocate” and “get it over it.” She stated that she was okay with the kiss, as long as it was short and get it over with.

[52] Defence counsel put it to her that she did not “sign any contracts” about the touching. MH agreed with him that one party “has to initiate” touching. She also agreed that it was not unusual for a boy to initiate a kiss with a girl. Finally, she agreed that at this point it was a consensual kiss.

[53] MH agreed that she did not want things to go further and that was why she went to move off the bed. It was at this point that he grabbed her and pulled her down.

[54] She disagreed with the suggestion that this happened like the kiss. She said it was “way too fast”. She stated, “It was boom, on the bed and there was no time for me to think, “let’s go with it.”

[55] She agreed that she did not immediately react. She froze. It was not until he was on top of her for about five seconds that she pushed him off. The smirking made her think that he had other intentions. She agreed with defence counsel’s suggestion that “basically, he made the advance and with his eyes and smiles he was saying, “do you want to continue this” and you were saying “no” so you pushed him off.”

[56] MH agreed that she did not confront QF with words such as “Why did you do that?”. “No, I wanted to leave”, she stated and she announced that she was going home. She agreed that when he stood in front of the door and told her she was not leaving, she pushed him out of the way. She agreed that he did not seriously try to stop her.

[57] MH agreed that she spoke to a number of people about what happened, but she did not go right away to the police. She did not give a statement to the police until the end of the following school year. She agreed that she talked to ST, who spoke with MH about her mutual experiences with QF. In Court, she did not remember what ST told her about what happened between ST and QF. She agreed with defence counsel’s suggestion that she and ST were “bonding” and ST was looking for “back up”, which she described as “supporting each other and having each other’s back”. She stated that they both thought that their complaints about QF would not be believed.

[58] MH disagreed with the suggestion that she and ST were “trying to go in [to the police] as one unit”. She stated, “No, just supporting each other.”

[59] She stated, “The only thing I mean by back up is that we have each other. That’s all I mean by back up. To cry on a shoulder just because we went through something.” She added that they would provide some sort of back up to each other if no one believed them.

[60] She agreed that she went to the principal after ST had already reported her incident. She stated that ST had no one else to talk about it who was her age, and she was concerned that no one believed her.

[61] She was also concerned that her peers would not believe her. When defence counsel suggested to her that her statement “reads” as if the principal did not believe her, MH stated, “She has her story and I have my story. I don’t know what the principal believed.”

[62] Ultimately, MH agreed that she decided to go to the principal almost a year after the incident after she had heard ST’s story. She also decided to go to the principal to “back her (ST) up.”

[63] When asked, “You went to the police to back her up?”, MH stated, “Not only for her, but also for myself.”

[64] Defence counsel asked, “It made you feel good that you were coming forward to essentially provide a similar version to ST?” MH did not give a verbal response to this question. She nodded her head and indicated yes. At that point, we took a break because MH was upset.

[65] Defence counsel confronted MH that she was not at QF’s that night and the incident did not happen as she indicated. MH disagreed.

[66] When asked how sure she was that this took place, she stated “9 out of 10”. She added that “It has been a year. The date could be mixed up.”

[67] Defence counsel put to her QF’s anticipated evidence that there were video cameras at QF’s home basically the entire night of July 31 and August 1 and she was not observed on the recording. MH testified that this did not change her evidence about her level of certainty.

Incident During the Cross-examination of MH

[68] During her evidence in-chief and cross-examination, MH testified by closed circuit from another room. Her mother was acting as her support person pursuant to section 486.1 of the Criminal Code.

[69] At one point during the cross-examination of MH, there was a break in the proceedings and MH left the closed circuit video room. Her mother remained in the room and the lawyers came into the courtroom. The sound was shut off in the closed circuit room but the video continued to be play.

[70] MH’s mother was observed to get up from her chair and walk over to the computer of defence counsel, which was left open, and read the screen.

[71] I ordered that MH’s mother not have any further involvement as MH’s support person and a representative of the Victim Witness Assistance Program acted as the support person for the balance of MH’s evidence.

[72] When cross-examination resumed, MH stated that she had not had any discussions with her mother since the break in the evidence.

[73] I was satisfied that the trial could continue. It was not argued that MH’s credibility or reliability was compromised by what took place.

Evidence of QF In-Chief

[74] QF testified that he is 17 years of age. In the summer of 2021, he was 15. He has lived in Arnprior in the house where the alleged incident occurred for his entire life.

[75] He stated that he has known MH for most of his life. She was “interested” in BL, who was a buddy of his, for most of that summer. He estimated that he would see MH between one and four times a week.

[76] He stated that MH was at his house less than 50 times, but more than 20 times. He estimated that over the summer of 2021, MH was at his house, at most, five or six times. He stated that his house was where MH and BL “started dating”.

[77] QF stated that he has never been alone with MH for longer than two minutes. He stated that when they hung out at his place, other friends were around.

[78] He confirmed that his house had a “granny suite” in the detached garage which was at the rear of the property. He and his dad renovated the garage into the granny suite and he moved out there when he turned 12. He identified Exhibits 2(a), (b) and (c) as exterior photographs of the house.

[79] The photos also show the location of the video surveillance camera. There was one camera under the Bell satellite dish. QF stated that camera had been installed there since the beginning of 2021. He stated that they put a second camera in after his house was “egged” after the alleged incident took place.

[80] He stated that he has never dealt with the camera system because he is not allowed to access it.

[81] He stated that he had “no problems” with MH. He described their relationship as “acquaintances”, but not “best friends”. He stated that he has not ever been romantically involved with her.

[82] He recalled that on July 31, 2021, he was working for his family business. He got dropped off at C’s house for the pool party. Other friends were there. He recalled that MH left and went to work. That was the last he saw her that day.

[83] He said that at that time, there was no discussion about seeing people later in the day. Those plans came up later that day when he was with the other group of friends.

[84] He recalled that he stopped swimming at 3:00 or 4:00 pm. He then went home and had dinner. He then played some video games. His friends B and N came over after about 6:30 pm.

[85] He stated that N was “interested” in a girl named HD. N asked him if HD and her friends could come over. He said that they could.

[86] He recalled that they arrived at 7:45 to 8:00 pm. He recalled that they smoked weed and played video games. He stated that at that time, he was a “pretty infrequent” user of marihuana. By “pretty infrequent”, he meant less than two times a week. He stated that because of his size, alcohol and marihuana did not affect him at all.

[87] He estimated that he, B and N smoked about two grams of marihuana before HD, AY and PH came over. He did not think that he was impaired at all.

[88] He stated that after the others arrived, it was “a relatively uneventful night”. They talked about going out. Another friend told him that MH might come over.

[89] HD was bitten by the dog at about 10:45 to 11:00. He stated that the girls walked to the hospital. The boys left about 25 minutes later. QF said that his step-father wanted “the party the shut down”. His mom was sleeping.

[90] After the dog bite, QF recalled dreading when his “mom would haul me out of bed and give me shit”.

[91] He denied that MH ever came to his house. He denied communicating with her at all. He stated that he turned his phone off after he heard from HD that she was at the hospital.

[92] QF admitted that he was arrested for an incident involving ST before he was arrested with respect to this case.

[93] He knew from “word of mouth” that ST and MH were “hanging out”. He stated that the charge with respect to ST was also an assault. She complained that he put his foot on her lower calf. She also complained of harassment. He stated that the harassment charge was dropped because it was determined that it was a “two-way street”. At the time of his evidence, the assault charge was still outstanding.

Cross-Examination of QF

[94] In cross-examination, QF stated that with respect to the pool party, he did not recall there being a hot tub. He recalled swimming in an above-ground pool. He did not recall any incident in a hot tub where MH was texting someone.

[95] QF stated he remembers being told that MH left the pool party to go to work. He did not have a conversation with her personally about that.

[96] He stated that, contrary to MH’s evidence, there was no mention of everyone coming over to his house after the pool party. He also disagreed as to who was present at the pool party. He stated that N was not present.

[97] QF stated that he did not want MH to come over. He stated that his mother has always insisted that there be an equal number of boys and girls at the house. If there was one less girl, she could have come over. Otherwise, he had no issues with her coming over.

[98] When asked about his evidence that he had been in MH’s presence between 20 and 50 times, he stated, “you kinda trapped me there” and stated that he believed the number was closer to 13 times. When the Crown put to him “13” as a pretty exact number he reiterated that was the case and stated that whenever he saw MH, BL was with him.

[99] He recalled seeing MH a week later at C’s house. He stated that, “To my knowledge, MH and I were on perfect ground until I was arrested.”

[100] He stated that he must have communicated with her electronically that summer, but he could not recall any specifics.

[101] He agreed that he had smoked marihuana with MH. He stated that 70 percent of the time they were with other friends. “I’d like to emphasize not alone” he told me.

[102] He admitted to smoking the two grams with B and N, but stated that he did not smoke when others were present. He stated that he does not smoke when others, who is not comfortable with, are present. He added, “I tend to stay off recreational drugs, so I know what is going on on my property.” He agreed that if he was off his property, such as at the train trestle or at the beach, it was “a different story”.

[103] He said that he would not smoke marihuana if MH or anyone else was present. He stated, “For the night of July 31st where it counts, I fully recall not smoking marihuana while the three girls were there.”

[104] QF stated that the security camera that is under the Bell satellite dish in Exhibit 2(B) allows a view of the entire driveway. Anyone walking through the driveway would pass through the field of view of the security camera.

[105] Crown counsel asked QF if he was ever concerned about things being caught on the camera. QF at first stated that he was confused by the question. He then elaborated that he never tried to sneak people in and he never tried to disable the camera. He allowed, however, that he was a “break the rules and take the consequences kind of guy” so rather than sneak people in, he would just have them walk up the driveway.

[106] He agreed that his mother did approach him a couple of times about who was on the camera. He stated that on August 1, he spoke to his mother about the dog-biting incident after HD’s mother texted her. He stated that he did not see what his mother could look at on the camera because the computer monitor was a curved screen. He said that his mother came and got him and they went into the computer room to talk. She asked him who the girls were that were leaving on the camera.

[107] Crown counsel then proceeded to make suggestions to QF to the effect that MH did attend that night after 2:00 am. QF stated, “No, I’d like not to go down the road of leading questions.” At that point I admonished QF and told him that unless I told him not to answer the question, he was not entitled to tell Crown counsel how to question him. He apologized to the Court and to the Crown for this.

[108] He then proceeded to disagree with Crown counsel’s suggestions that while MH was there, he played video games, smoked marihuana, pulled her on to the bed, got on top of her and smirked and blocked her at the door.

[109] He was “pretty sure” that she had been to his garage before. “I knew her and I didn’t think that there was a problem until I got arrested for this case. There was no inkling of any bad blood until she got arrested and I am here”.

[110] He agreed that a second camera, which can be seen in the upper right corner of the garage, was installed after he was charged. That camera points at the garage door. He stated that this camera allows one to see everything that the other camera sees plus more.

[111] After completion of the cross-examination, I asked QF his height and weight. He indicated that he was six feet one inch tall and weighed about 218 pounds. He stated that he was a little shorter (5 feet, 11 inches) and heavier in 2021 and estimated that he would weigh about 250 pounds.

[112] I also asked him to show me exactly where the field of view of the original camera was. He explained to me that the original camera shows right up to his neighbour’s property. He drew the field of view on a second copy of Exhibit 2(a) which I had marked as Exhibit 2(c). He explained that a person could not get up the driveway without passing that camera. Neither counsel had questions arising out what I asked QF.

Evidence of AF In-Chief

[113] AF is QF’s mother. She testified that they have lived on the same property, where the incident took place, since 2004 or 2005. QF has his “own area” in the garage which is six steps from the back door. He has been an inhabitant of the garage for a few years.

[114] She stated that he is subject to curfews like any normal teenager. She stated that he was allowed to have friends over as long as she knew who was there and how many friends were there. He was not allowed to be with alone with females until he was 16 or 17. His curfew was around midnight. She knew his peers.

[115] MH was not, to AF’s knowledge, one of QF’s peers. She stated that she had known MH from years before when MH and QF were in daycare. “If she was at our home, I wasn’t aware of it”, AF stated.

[116] AF testified that there are currently three video surveillance cameras on the house. The first one was installed in June of 2021 (before the alleged incident) because of car hopping and break ins in the area. The other two were installed in 2022 (after the alleged incident). She stated that after the cameras were installed, she checked them to make sure that curfews were being met.

[117] She stated that it was not possible to get to the part of garage QF was in without going up the driveway. It was not possible to go up the driveway without the first camera catching it. She stated that the garage camera, which was installed later, was installed because the original camera allowed you to see persons but you could not see their faces or close ups of them. The camera above the garage door will reveal faces.

[118] She also stated that the first camera went up because their house was egged.

[119] AF recalled that on the night in question, QF asked her to have several friends over and she gave permission. He knew that the curfew was at midnight. She stated that she was in bed and her partner came in and told her that all of the kids had gone home. The partner also told her that there was a “minor incident” but everything was fine.

[120] The following day, AF received a text from the mother of one of the girls who said that her daughter was bitten by a dog and had to go to the hospital. AF thought that it was a small nick or a scratch, and the girl’s mother was looking for information about when the dog had his shots. The girl’s mother also told her that she went to meet her daughter (and the other girls) at the hospital at 11:15.

[121] AF decided that to check the surveillance camera.

[122] She stated that the computer controlling the surveillance camera was not password protected. She also stated that there were no rules about not using the computer or looking at the footage. That said, she stated that she does not remember QF ever being in the room where the computer was. She stated that she rarely went into that room as well. She added that it was more of an office for use by her partner. She also noted that he has his own computer.

[123] She explained that to check the surveillance, there is a graph on the bottom of the screen in the security software which shows whether the camera recorded anything of note. To see what the camera recorded, one clicks on the graph. The camera is not recording 24 hours a day. It is triggered by movement.

[124] AF stated she went back and checked between 11 and 12 because of the report from the mother of the girl with the dog bite. She saw movement. She clicked on the graph and it brought up footage of the girls going down the driveway. She testified that this happened at approximately 11:15.

[125] She stated that she did not remember seeing any other recordings or movement coming or going from that night in the time frame that she was in.

[126] Defence counsel asked her if it was possible that there were no other recordings the night of August 1. She stated, “Not in length”. By “not in length”, she explained there will sometimes be recordings that are short, such as when a squirrel runs across the driveway.

[127] The computer only saves data for thirty days. She no longer has a recording of what the camera captured that evening.

[128] Defence counsel asked her if it was possible that MH came up the driveway and she just didn’t see it. QF replied, “Not in the hours that I was looking at.” When asked, “What about later that night?”, AF stated, “I don’t know. It’s possible. I did look at the computer between those hours and I don’t recall seeing any lengthy or any recordings.”

Cross-Examination of AF

[129] In cross-examination AF confirmed that she was primarily concerned about what time the girls left. She did not, for instance, look at when the girls arrived. She stated that it should have been recorded. She stated that once she saw the clip of the girls leaving, she did not look at any other clips. She stated that she did not remember seeing any clips on the graph. If she saw something, she would have opened it.

[130] She agreed that she had not seen MH at all during the summer of 2021.

[131] When asked if she had a “good pulse” on who QF was having over, she stated “not all the time.” She stated that there was one person who she saw on the screen, who was a female, that she did not recognize. She said that she had to speak to QF to find out who this person was.

[132] She stated that she would not have recognized MH in the summer of 2021 if she had seen her on the screen. She did not know if QF was hanging out with MH in the summer of 2021. She was not aware that MH was coming over.

[133] After she watched the video, she had a conversation with QF and asked him about what had gone on. She does not remember how soon after she watched the video, she had that conversation. She does not remember ever showing the video to QF.

Re-examination of AF

[134] In re-examination, AF stated that because QF’s curfew is 12:00, she usually looks at the graph for signs of movement at that hour “and after”. She stated the purpose of this is to ensure that he was complying with his curfew and to give him trouble if he wasn’t.

Submissions of the Crown

[135] Crown counsel urged me to accept the evidence of MH. He zeroed in on the issue of collusion between MH and ST. He stated that there was nothing wrong with MH going to the police after ST did. He argued that MH did not deny that this is what motivated her to do so. Therefore, he maintained, her credibility was intact.

[136] He argued that there was no evidence of outright collusion. He argued that the issue is innocent collusion, but for reasons in R. v. EMM, 2021 ONCA 436, MH is still reliable. In this regard, he argued that I can reject collusion because the core events are a distinct memory in MH’s mind, and her recollection was vivid.

[137] He stated that MH gave her evidence in a straight-forward manner. He argued that it was clear that she was not trying to fabricate or fill in gaps. He stated that she did not exaggerate. For example, he pointed to her evidence that QF did not seriously try to stop her from leaving.

[138] Crown counsel argued that I should reject the evidence of QF and not have a doubt. He cited an inconsistency regarding marihuana use. He stated that it was clear that QF was trying to distance himself from the events. His evidence was “wishy-washy”; he backtracked. Parts of it “does not line up”. He did not appear to be the most concerned with telling the truth. He tried to avoid leading questions until he was admonished by the Court.

[139] Crown counsel argued that the evidence of AF does not assist. Ultimately, she did not recall noticing other clips and could not say for certain one way or another. Therefore, there is no clear contradiction of MH’s evidence that she went to QF’s on the night in question.

[140] With respect to MH, he argued that pursuant to R. v. JJRD, I should reject the evidence of QF based on a considered and reasoned acceptance of MH’s evidence.

Submissions of Defence

[141] Defence counsel argued that the failure of MH to remember the exact address where the incident occurred belied significant issues with the reliability of MH’s story. He further argued that MH’s evidence about confusing morning and afternoon and blaming it on her dyslexia was a “curious response”.

[142] He maintained that the dog bite incident should solidify the date that the incident took place in everyone’s mind.

[143] Defence counsel argued that collusion was a significant problem. He stated that what happened here went beyond “innocent collusion” because MH went to the police and told her story in order to support ST. This, he argued, also explains the delay in reporting, which makes delay in reporting a more significant issue.

[144] Defence counsel argued that I should have a doubt based on the evidence of QF and AF.

[145] In the event that I don’t believe QF’s denials, I should find that MH consented to the touching. MH consented to QF putting his head on her shoulder. She consented to the kiss.

Reply Submissions of the Crown

[146] In reply the Crown argued that with respect to collusion with ST, MH was clear in her evidence that she went to the police station to “support myself”.

[147] He also argued that the evidence that MH pushed away after the kiss makes it clear that she was not consenting.

Analysis

[148] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[149] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:

a) First, if you believe the evidence of the accused, obviously you must acquit.

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

c) 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.

[150] In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe: R. v. Esquivel-Benitez, 2020 ONCA 160. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected: R. v. J.J.R.D. at paras. 46-48, leave to appeal to SCC refused, .

[151] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence: R. v. Morrissey, [1995] OJ 639 (Ont. C.A.) at paragraph 33. R. v. HC [2009] OJ 1979 (Ont. C.A.) at paragraph 26. The credibility and reliability of a witness must be “tested in light of all the other evidence presented.”: R. v. J.J.R.D., supra, at paragraph 46.

[152] In assessing each witness’s account of what happened, I have considered the account’s internal consistency, its consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.

[153] To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, the mental capability and limitations and their level of sophistication.

[154] Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern: R. v. Stewart, [1994] OJ 811 (Ont. C.A.) at paragraph 27.

[155] In order to find QF guilty of the offence of assault, I must be satisfied that he applied force to MH without her consent.

Do I believe the Accused?

[156] In a word, no.

[157] His evidence with respect to the use of marihuana was particularly telling. He was very careful to point out that he did not use marihuana 70% of the time that MH was there. I thought his comment, “I’d like to emphasize not alone” was a curious comment.

[158] Secondly, he also stated that because of his size, the use of alcohol and marihuana does not affect him. This seems to be an attempt to bootstrap his previous comment.

[159] Thirdly, there was more evidence of bootstrapping when he stated, that with respect to the night of July 31, where it counts, he fully recalled that he did not consume marihuana. He was very live to the issue that his (and MH’s) marihuana consumption may have been a factor that the Court would have a keen interest in. He was not at all transparent about expressing his confidence that the Court should not be concerned about it.

[160] Finally, he stated that he does not use marihuana at his house so that he can keep tabs on the others that are around him who might be using marihuana. I don’t believe any of this evidence. I find that these comments were made in an effort to distance himself from the fact that MH clearly testified that QF (and she) were using marihuana. In fact, MH testified that QF was the supplier of this marihuana.

[161] QF’s attempt to match wits with Crown counsel was also a problem. As I indicated, he was live to the Crown’s use of leading questions, and he tried to shut this technique down when it was not his place to do so. Additionally, when he was asked about how many times he saw MH that summer, at first he stated between 20 and 50. When pressed by Crown counsel, he stated “Well you kind of trapped me there” and then came up with an exact number, 13. How could he possibly remember the occasions with such exactitude?

[162] I simply do not believe him.

Am I left in a Reasonable Doubt by the Evidence of the Accused?

[163] I am not left in a doubt by his evidence either. QF’s significant issues with credibility have fatally compromised any chance that what he said could leave me in doubt.

On the Basis of the Evidence I Do Accept, Do I Have a Reasonable Doubt?

[164] With respect to evidence of AF, this also does not leave me in doubt. She did not agree with QF’s evidence about a rule about the ratio of boys to girls that he was allowed to have over. She did not agree with his evidence about a rule that he was not to use the computer that stored the video surveillance system, although she did say that she never saw him in that room and that the room was her partner’s home office.

[165] Most importantly, I find that she did not thoroughly review the surveillance system after the hours of 11 pm to 12 am. When AF became involved, she was primarily concerned with finding out what happened because of the dog bite. She had no reason to look at anything after 12 am. It was almost a year before these charges were laid. They were not in the realm of contemplation at the time that the video surveillance was reviewed. Her evidence that she did not recall seeing anything of concern that night, and if she had she would have looked at it, was wishy washy. It does not leave me in doubt that MH must have been lying about her attendance at QF’s on the night in question or at the very least, mistaken about the date on which she did attend.

[166] MH’s inability to recall the exact address of QF’s residence was a peripheral detail. Her evidence was clear that she knew how to get there and that is what mattered.

[167] MH’s evidence that she confused am and pm because of her dyslexia is believable and understandable.

[168] I found defence counsel’s submission that in the event that I do not believe QF, I should have a doubt and find, based on the fact that MH consented to QF putting his head on her shoulder and kissing her, that she consented to the conduct complained of, extremely troubling.

[169] Respectfully, this argument is steeped in myth and stereotype. Defence counsel’s questions to MH to the effect that “someone has to make the first move”, are extremely problematic and not in line with a modern view that there must be communicated consent to touching.

[170] Communicated consent can happen by words or actions. QF’s decision to put his head on MH’s shoulder is, in fact, an assault but MH condoned it. By reciprocating in the short kiss, MH consented to the kiss. She did not consent to anything else.

[171] Grabbing MH, throwing her to the bed and straddling her? How, on earth, could MH’s condonation of the QF’s head on her shoulder or reciprocating in the short kiss, cause QF to reasonably believe that she was consenting to such a significant upping of the ante? It is a patently absurd argument and I completely dismiss it.

Collusion

[172] Defence has raised collusion between MH and ST in this case.

[173] In R. v. Burke, the accused was a Christian Brother at the Mount Cashel Orphanage in Newfoundland. The case involved allegations of sexual assault brought by two individuals, C and E. E first came forward in 1975. Police investigated and closed their file. E came forward again in 1989. This time, his claims were found to be gross exaggerations. Some claims were found to be downright false. As a result of this, the trial judge found that E’s evidence should not be believed unless there was corroboration.

[174] Enter C. C complained of an incident involving the accused that was strikingly similar to one of the incidents that E complained of. The trial judge found that C’s complaint was sufficient corroboration of E’s complaint and convicted the accused.

[175] It was revealed that C was contacted by police as part of the original investigation, but he had nothing to say. He then came forward in 1989 after he was contacted by the same lawyer who represented E about making a civil claim. Justice Sopinka noted at paragraph 35, “ As a result, there was clearly a possibility that C merely parroted E's widely reported claims, or tailored his evidence to coincide with that of E as a result of conversations with their common lawyer ….”

[176] This is where the trial judge fell into error. Justice Sopinka stated at paragraphs 37 and 38:

[37] In my view, the obvious inconsistencies and falsehoods in the testimony of C. render the trial judge's finding of credibility unreasonable. I simply cannot accept that any trier of fact, acting judicially, could have found any merit in the claims of either C. or E. Moreover, given the frailties in the evidence of these two witnesses and the strong possibility of collusion, reliance by the trial judge on the evidence of C. to corroborate E.'s testimony was unreasonable.

[38] In finding that there was no collaboration between the complainants C. and E., the trial judge stressed the fact that C. had never had access to the newspaper reports in which E.'s statements had appeared. Because there was nothing in the evidence to suggest that C. had learned the details of E.'s allegations through the media, the trial judge held that C.'s account of abuse had not been tainted by prior knowledge of the statements made by E. With respect, this ignores the possibility that C. may have learned the details of E.'s story through contact with their common lawyer, Harry Kopyto. The trial judge appears to have failed to notice that both complainants had been in contact with Kopyto. Without referring to the obvious possibility of contact through a common lawyer, the trial judge took the view that there was "no evidence that prior to [S.E.] or [D.C.] making their respective complaints to the police there was any contact between the two" (p. 300). Clearly, contact between the complainants and Harry Kopyto constitutes evidence of possible contact between the complainants, or at least the possibility that C. was exposed to the details of E.'s allegations. Obviously, this raises a risk or possibility that C.'s claims against the accused arose from his knowledge of the statements made by E.

[177] Because the trial judge’s verdict with respect to C hinged on the acceptance of E’s evidence as a similar fact, it simply could not stand.

[178] In R. v. F.(J.), the accused was a karate teacher. Seven students alleged sexual assault. The accused was acquitted in relation to four of the students but convicted in relation to three.

[179] The charges were laid after the complainants met together. Present at this meeting, and involved in the case was another former student, ET. She had become suspicious of the accused after she heard rumours about his relationship with boys at his karate school. In addition to the meeting, she also spoke with a number of complainants by telephone. She encouraged them to go forward with their complaints. She also had developed an animus against the accused based on her experiences at the karate school, and the fact that the accused intervened with her parents because of a relationship she was having with another student at the school.

[180] The trial judge found that the evidence of tainting was, in part, sufficient to dismiss charges against four of the complainants. The trial judge found that the other three complainants were credible. This was on the basis that one complainant had told his mother at the time (before ET became involved), and on the basis that the accused had admitted the incidents. In this latter aspect, the trial judge misperceived the accused’s admission. The accused admitted touching the boys during a stretching exercise. He did not admit that the touching was for a sexual purpose. Justice Feldman, writing for her herself and Justices Laskin and Cronk stated at paragraphs 77 through 79:

[77] The trial judge’s finding that B. H. was sincere, a “straight shooter”, and not influenced by E. T. and the others, fails to take into account that collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.

[78] B. H. had several meetings and telephone conversations with E. T. and numerous conversations with individual complainants from 1995 to 1997 and apparently right up to, and through, the trial. From E. T. he heard the details of stories of what she said had happened to other boys, recounted on the basis that the appellant was a sexual pervert and predator. From other boys he not only heard details of some of their stories, but together they commiserated and supported each other, first as victims of the appellant and eventually as protagonists against him in these proceedings. Once he began to meet with E. T., B. H. concluded and articulated that the appellant was a pervert.

[79] The trial judge’s finding, based on B. H.’s demeanour and sincerity, ignored the serious potential for inadvertent tainting from these numerous meetings and conversations, particularly tainting about B. H.’s perception of the appellant’s intent, and about whether it was sexual or only to assist with stretching to improve karate skills. As B. H. acknowledged in cross-examination, hearing the other stories confirmed in his mind that the appellant was a pervert.

[181] At paragraph 88, Justice Feldman stated that this was a “serious error of law”.

[182] In R. v. E.M.M. Justice Hoy, writing for herself and Justices Rouleau and van Rensburg discussed innocent collusion in this way at paragraphs 19 and 20:

[19] Innocent collusion occurs when, through mere conversation, false memories are implanted and overwhelm independent recollection. However, courts must be wary of jumping to the conclusion that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation. Witnesses may know each other. It is human nature to discuss what happened immediately after offending behaviour takes place: Peter Sankoff, The Law of Witnesses and Evidence in Canada, loose-leaf (Toronto: Thomson Reuters, 2019), at §7.4(c), adopted in R. v. L.(R.G.) (2004), 185 C.C.C. (3d) 55 (Ont. C.A.), at para. 37, per Weiler J.A. (dissenting, but not on this point), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288.

[20] Defence counsel’s primary argument at trial was that the complainant and S. intentionally colluded. She adverted to the risk of innocent collusion in her reply submissions but had laid no foundation during the trial to this submission. The complainant testified that she had an independent recollection of events and S.’s testimony that she heard the complainant call out for V. and yell “stop” withstood cross-examination. Defence counsel did not cross-examine the complainant nor S. as to the risk that their recollection of events had been tainted by their discussions before going to the police.

[183] In R. v. CG 2021 ONCA 809, at paragraphs 27 through 33, Justice Nordheimer described collusion this way:

[28] As I have intimated, the term “collusion” has been used to describe two different phenomena. The first is deliberate or “advertent collusion”, that is, where witnesses get together and fashion their evidence in concert in order to appear to be reciting a consistent and reliable story. The other, commonly referred to as “inadvertent collusion”, occurs where one witness discusses the events with another witness with the consequence that the evidence of one or both of them may be altered. Put another way, a witness’ evidence may be “inadvertently” impacted by the fact that they have heard the evidence of other witnesses which “can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”…..

[29] While the issue of collusion most often arises when a court is considering the admissibility of similar fact evidence, it is an issue that has relevance to the evaluation of a witness’ evidence in general.

[30] As this case illustrates, it is unfortunate that the term “inadvertent collusion” has been coined. As I will explain, “advertent collusion” affects the credibility of evidence. “Inadvertent collusion”, or accidental tainting, does not do so. It affects only the reliability of such evidence. As a result, an entirely different analysis is required in determining the impact that “inadvertent collusion” may have on the evidence in question. Yet the term “inadvertent collusion” obscures this because the term “collusion” connotes conspiracy, which is a credibility concern. It would be better if the term “inadvertent collusion” was avoided and replaced by the term “inadvertent tainting”. Given that the term “inadvertent collusion” was used during the matter before us, I will continue to refer to “inadvertent collusion” but as I say, that is a term that would best be avoided going forward.

[31] I will begin with advertent collusion. It is self-evident that this first form of collusion is particularly problematic. Deliberate collusion among witnesses will inevitably undermine the credibility of the evidence given. No court would be comfortable relying on evidence from witnesses who have gotten together and decided on what they are going to say when questioned under oath, at least not without independent corroborating evidence establishing that their evidence is reliable, notwithstanding the collusion.

[32] The second form of collusion, “inadvertent collusion”, is more difficult. The fact that one witness has heard what another witness will say, or for that matter has even discussed what another person’s recollections were, does not mean that either witness is not telling the truth, or is not giving their independent recollection, or that their evidence has been tainted. Indeed, even where the evidence of one of the parties to the discussion is inadvertently affected by what another person has said, the account of that other person may not change. For example, in this case, it is possible that when, during the joint meeting with the defence lawyer, the appellant’s wife offered reasons why the appellant could not be guilty, the appellant did innocently incorporate those reasons into his testimony, but that does not mean that his wife’s observations were inaccurate or that her testimony had changed as a result of their discussion. Nor does it necessarily follow that the appellant’s testimony became unreliable. He may have recognized from his own knowledge the truth and importance of what his wife had observed. The key point is that, unlike advertent collusion which corrupts the evidence of all participants, where inadvertent collusion has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange…..

[184] In R. v. Richer 2023 ONSC 3158, a case which involved multiple complainants, Justice Bramwell paraphrased CG this way at paragraph 252:

Outright collusion between witnesses is a credibility issue. If a court finds that witnesses have actively tried to “get their stories straight,” the ability of the court to find that those witnesses are honest and credible and are intending to tell the truth is compromised. Inadvertent tainting is a reliability issue. A witness whose evidence has been tainted, without him or her realizing it, through inadvertent tainting, may well be a credible witness who appears to be honest, forthright and telling the truth. The witness may well believe he or she is telling the truth. But the fact that his or her account has changed, even subtly, but in a relevant way, because of discussions with others, means that it may be less reliable.

[185] I think that MH was probably telling the truth and the incident with QF she described happened.

[186] But, based on collusion and tainting, I have a reasonable doubt.

[187] MH’s use of the word “back up” when describing why she went to the police to report what happened to her is extremely problematic. It is clear that she and ST had a conversation. It is clear that ST was very concerned that she would not be believed. This is what caused MH to go to the principal and ultimately to the police to disclose what happened to her.

[188] This is not a case where “immediately after the offending behavior” witnesses who know one another innocently discussed what happened to each other, as described in E.M.M.

[189] This is not a case where I can chalk up the discussions between ST and MH and MH’s decision to report as simply “human nature.”

[190] MH reported in order to support her friend. MH reported because of ST’s concern that ST would not be believed.

[191] MH’s decision to support her friend is laudable, and many would say admirable. In her attempt to bolster the credibility and reliability of her friend’s report, however, she compromised her own.

[192] Accordingly, even though I am inclined to believe MH’s account of what took place, I have a reasonable doubt.

[193] QF is entitled to the benefit of that doubt and he is therefore acquitted.

Released: January 22, 2024 Signed: Justice J.R. Richardson