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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2024 10 30 Court File No.: Thunder Bay 42102521

Between:

HIS MAJESTY THE KING

— AND —

R. M.

Before: Justice C.M. Brochu

Heard on: July 26, 2024 Reasons for Judgment released orally on: October 2, 2024 Released in writing on: October 30, 2024

Counsel: Shelby Ernst........................................................................................ counsel for the Crown Neil McCartney.................................................................... counsel for the defendant R.M.

BROCHU J.:

Overview

[1] R.M. is charged that on or between the 1st day of January, 2020 and the 30th day of December, 2020, he sexually assaulted H.G. contrary to section 271 of the Criminal Code, and for a sexual purpose touched H.G. a person under the age of sixteen, directly with his hands contrary to section 151 of the Criminal Code.

[2] The trial was heard on July 26, 2024.

[3] In essence, this case involved an allegation made by the complainant, H.G., age 13 at the time of trial, and 9 years of age at the time of the alleged offence, against her adoptive father. In this regard, it is alleged that the accused, while the complainant was in his bed, put his hand under her night shirt, touching her in the chest area.

[4] This is a matter, like so many criminal trials, that will be decided based on an assessment of the credibility and reliability of the evidence given by the witnesses.

Summary of Evidence

[5] The Crown called 2 witnesses, the complainant, H.G. and N.F., the complainant’s mother. The accused also testified at trial.

General Background Information

[6] The accused and N.F. were in a common law relationship for approximately 10 years, from 2010 to 2020. They had two children together, C.M. and Q.M., they are now 12 and 8 years of age. The complainant, H.G., is N.F.’s niece, and was adopted by N.F. in 2012 or 2014.

[7] In or around June 2019, N.F. was transferred to Kapuskasing for work. It is unclear how often she would return home. While N.F. was gone, the accused was the single parent to the three children.

[8] The relationship between the parties deteriorated and they eventually separated in May of 2020. At first, they were still living in the same home and sleeping in separate bedrooms.

Agreed Statement of Facts (“ASF”)

[9] It was agreed by way of ASF, that the accused was charged on August 26, 2020, with allegations of having touched his son’s penis in the bathroom. It was indicated that the accused required to assist his son as he was not circumcised and to apply ointment provided by the doctor. These charges were withdrawn on October 8, 2020.

[10] I questioned the use that was to be made of the ASF. The parties agreed that it was for a very narrow issue and that these facts were to assist with dates and relevant surrounding circumstances.

Post Separation

[11] After the alleged incident from 2020, involving C.M., was reported and the accused was charged, he could no longer live at the home the parties had shared. Afterwards, his contact with the children was by way of telephone calls.

[12] N.F. indicated that at the time the allegations were disclosed by H.G. the children had contact with their father by video call two times per week. Subsequent to H.G.’s police interview on September 7, 2023, there was a new court order in place, which included a restraining order and no contact with all children.

Evidence of H.G.

[13] H.G. was 13 years of age when testifying, being born on July 16, 2011.

[14] H.G. provided an audio video recorded statement to the police on September 7, 2023, she was 12 years of age at the time. A voir dire was held pursuant to section 715.1 of the Criminal Code. H.G. adopted the statement.

Summary of Statement Given by H.G. on September 7, 2023 (“H.G.’s Statement”)

[15] The interview was conducted by Detective Constable Kevin Bradley. It should be noted that Dan Ezowske, of CAS was also present in the room during the interview.

[16] In her statement, H.G. indicated the following: (In my analysis, I will further elaborate on H.G.’s Statement and the weight that can be attributed to it.)

• H.G. agreed with the suggestion of DC Bradley that about three years prior, when she was 9, while laying in bed beside her father, he touched her on her chest.
• The above incident made her feel upset.
• The night in question, she was in her room. She was scared. She went to her parent’s room. Her mother was in Kapuskasing. It was only her father there. She fell asleep with his hand up her shirt.
• She may have done this, went into her parent’s bed, when afraid of the dark. Both times her mother was in Kapuskasing.
• When questioned about when this happened, H.G. indicated that she would not have been in school because COVID had started. She believes it was springtime.
• She was wearing a “jammie dress”. She described it as a grey dress with pineapples and ice cream and words on it.
• It was dark out when she went to her father’s bedroom.
• She said yes to the question of whether her father was awake when she entered his bedroom.
• She did not remember if he said anything to her or if she said anything to him.
• She agreed with the proposition that she just climbed into bed.
• She indicated that she was really tired. She started falling asleep and then she remembered him putting his hand up her shirt.
• When questioned as to whether he just placed his hand there or if he was touching her on “her breast area and stuff like that”. She indicated that she could not remember.
• She does not know how long his hand was there.
• When asked whether she said anything to her father when this was happening. She indicated “No. I think I was asleep.”
• When asked how she knew his hand was there. She indicated that she felt it as she was falling asleep.
• She indicated that he would have touched her with his left hand. She described that he was laying on his right side. She was laying on her back.
• H.G. stated that she woke up in her room. She did not remember getting up and going back to her room. She agrees to the suggestion that her father might have carried her back to her room.
• She did not talk to her father about this.
• The first person she told about this incident was her mother and Dan. She did not remember what she told her mother.
• She was asked how she felt at the time this incident occurred. She indicated that she was not really sure, but that it makes her upset now. When questioned as to why, she stated: “Because he knew what he was doing”. When asked what she thought he was doing, she stated: “Touching me inappropriately”.
• When questioned as to whether her father had ever touched her anywhere else that night. She stated that she did not think so.
• When questioned as to whether he ever touched her anywhere after, she stated that she did not know. This answer prompted DC Bradley to ask whether there was anything else that she wanted to share. H.G. states as follows : “My mom says that she has memory of me going to sleep in like blue pajamas and then I woke up and I went down to her room and I was in purple pajamas.” She confirmed that she had no memory of that incident.
• At the end of the interview, Dan Ezowske asked H.G. whether she recalls ever getting medication before bed. H.G. stated that she would often, almost every night, be given Gravol. She explained that she had glasses, but didn’t wear them, as a result she would get headaches and feel sick, so her father would give her Gravol before bed.

[17] In her examination in chief, H.G. was asked where her father placed his hand. She indicated in her chest area. She was further asked if she remembered specifically where. H.G. stated that it was nowhere really specific.

[18] She was also questioned as to why she told her mother and Dan about this incident in July 2023. She could not remember.

[19] In cross-examination, H.G. was questioned regarding the disclosure of this incident to her mother and Dan. She was queried as to whether she was being asked questions about her father at the time. She indicated that she was pretty sure she was.

[20] H.G. was also cross-examined about the comment she made that she was not quite sure how the incident made her feel at the time, but that now it upset her. She was asked what changed to now make her feel upset. It was specifically asked if it was from talking to people about it that she realized how she felt. H.G. indicated that she was not really sure, but maybe a little. When questioned as to whether this included talking to her mother about it, she stated, “yes”.

[21] The mention of her mother’s memory of her waking up with a different pyjama, was also addressed in cross-examination. In this regard, H.G. was questioned as to her understanding as to why this information was relayed to her. She again confirmed that she had no memory of this event. It was put to her as to whether she understood by this, that her mother was saying that this is another incident where her father may have done something to her. She answered, “yes”.

[22] H.G. was asked whether she remembered speaking to CAS in the past, prior to the time she spoke with Dan in the summer of 2023, where she would have been asked the same kind of question. She remembered. She was not sure when it was. She confirmed that she did not disclose to CAS at that time that her father had touched her chest area. She was cross-examined as to when this incident came to her mind. She stated that she did not know, and that she just “kind of remembered it”.

[23] H.G. acknowledged that her parents were fighting a lot when her mother returned from working in Kapuskasing. Even once they separated, they continued having disagreements. She confirmed that they argued about her father spending time with them.

Evidence of N.F.

[24] N.F. was 34 years of age when she testified. She has been employed with the same employer for 17 years. She has been in her recent position as store manager for approximately one year.

[25] N.F. testified that H.G. ran away from home the week of her birthday in July 2023. She later found out that H.G. was at a friend’s home. She was not familiar with and did not know this friend. The police became involved. When she was found and returned home, there were discussions about why she ran away.

[26] It was N.F.’s evidence that H.G. was having some difficult time with her father, the accused. The contact was occurring by telephone at that time and H.G. did not want to be at home. They were then referred to CAS by the police.

[27] CAS attended their home for an interview with H.G. That is when H.G. disclosed what had happened with her father. The CAS workers then spoke with H.G. on her own and arranged for her to attend the police station. She was not involved in those discussions.

[28] N.F. was questioned as to whether H.G. was afraid of anything. She indicated that she was not.

[29] In cross-examination she denied that the children would have seen them argue.

Evidence of the Accused

[30] The accused was 47 years of age when he testified. He has relocated to the Ottawa region. He works as a chef.

[31] It was his evidence that H.G. was afraid of the dark as a child, but by around age 6, she was over that fear.

[32] He testified that the children had a strict bedtime routine and that the children never came in his bedroom at night. It was his evidence that once they were down, they were out.

[33] He indicated that they would come in his bed in the morning. They all did. However, he did not recall them coming into his bed during the night.

[34] The accused denied that there was ever a time where he came in contact with H.G. under her clothing. When pressed on this issue in cross-examination, he stated that H.G. was independent. She would shower on her own. She picked out her own clothing and got dressed on her own.

[35] It was his evidence that the only time H.G. and he would lie around would be on the couch while watching television. He never touched her under her clothing while lying on the couch with her either.

[36] In cross-examination, he indicated that the only time he remembers sharing a bed with the children was in 2020 when they went to the Victoria Inn. This was during the separation in May 2020. He brought them there to get away. The boys shared a bed. H.G. and he slept in the other one.

[37] He was cross-examined on the period when N.F. was working in Kapuskasing. He confirmed that he was alone with the children and was solely responsible for the children’s care daily during those periods.

[38] It was his evidence that he did not recall the children waking up in the middle of the night. He clarified that when H.G. was young she used to wake up during the night. He would rub her eyes and sit by her side to help her fall back asleep. He denied that he would lie in bed with her. The children may wake up if they were sick, but he did not remember them being sick during the referenced period of time.

[39] He was further cross-examined as to whether the children would get up to either go to the washroom, have a snack, or for other reasons. It was his evidence that C.M. would sometimes get up to go to the washroom. Other than that they did not get up to eat or for any other reasons.

Position of the Parties

[40] Both parties agree that this is a W.D. case.

[41] The defence argues that the Crown’s case is so problematic that reasonable doubt jumps out at you.

[42] In addressing the evidence of H.G., the defence advanced that her evidence was inconsistent. In this regard, he advanced that during her statement H.G. referred to how she felt after the incident happened. However, under cross-examination, H.G. indicated that she had no recollection of the incident until some time following the alleged incident, when it came up to mind for her.

[43] The defence states that H.G. was also questioned surrounding another police incident in 2020. This would be in or around the time that this alleged incident took place. However, she did not mention this incident at that time, stating that it was gone from her mind.

[44] It is advanced that even if the court was to accept that she was in her father’s bed, she testified that she was very sleepy and drowsy, and that she fell asleep quickly. It is argued that the language used would lead one to believe that she may be remembering this in her sleep. It is the defence’s position that this should raise reasonable doubt if anything else does not.

[45] The defence also mentioned that the court needs to be alive to the fact that these allegations arise in the midst of separation. The parties are involved with family court proceedings. N.F. denied that they ever fought in front of the children. That is said to be too difficult to accept, and that denials of this kind have an impact on N.F.’s credibility. It is stated that these surrounding circumstances had an influence on the complaint made by H.G.

[46] It is also argued that little weight can be placed on H.G.’s Statement. It is argued that the interview by DC Bradley is a classic case of leading.

[47] The Crown argued that both Crown witnesses were credible and unshaken in their testimony.

[48] The Crown stated that children’s evidence needs to be considered in the context of their age. As a result, although H.G. could not remember some parts of the incident, for example where she what touched, other then the general reference to her chest, or that her memory may not be the clearest, should have no bearing on her credibility and/or reliability.

[49] It was advanced that H.G. may not have remembered the incident after it took place, nor did she remember it when she spoke to police in 2020. The Crown states that it came to her at a crucial time when she was having a difficult time with her father. The fact that she now remembers the event is what is important.

[50] The Crown argued that the accused’s evidence was implausible. It is argued that the accused’s blanket denial that the children never slept with him, did not get up during the night, and that H.G. did not need assistance to get ready, did not make sense.

The Law

Proof Beyond a Reasonable Doubt

[51] Like every person accused of a criminal offence, the accused begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.

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

[53] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

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

[54] Three years later, in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that:

In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr , at para. 242 , per Iacobucci J.

Assessing Credibility and Reliability

[55] The accused testified. I am required to engage in the analysis set out by the Supreme Court of Canada as well in R. v. W.(D), [1991] 1 S.C.R. 742. That analysis, in credibility cases, does not create a credibility contest between the complainant and the accused.

[56] I am not simply to choose whose version of events I favour. If I accept the accused's exculpatory evidence, I must acquit. Even if I do not accept it, if it leaves me with a reasonable doubt, I must acquit. Even if I do not accept his evidence, I must ask whether I still have a reasonable doubt on the basis of the entirety of the evidence which I do accept: R. v. R.D., 2016 ONCA 574 at para. 42.

[57] The case of W.D. reinforces the central notion that an accused cannot be found guilty simply because the court prefers the evidence of the complainant.

[58] This analysis cannot be done in a vacuum. No witness is entitled to an assessment of his or her credibility in isolation from the rest of the evidence. Rather, his or her testimony must be considered in the context of the evidence as a whole. In a case where the parties have given two opposite versions, that necessarily means that the defendant's evidence must be assessed in the context of and be weighed against the evidence of the complainant (and vice versa). As always, I can choose to accept all, some or none of a witness’s evidence.

[59] A trial judge is required to apply the well-known principles set out in R. v. W. (D.), not only in relation to an accused's testimony, but also to all other potentially exculpatory evidence (R. v. Perkins, 2016 ONCA 588, at paragraph 36).

[60] Credibility and reliability are not the same. Credibility concerns the veracity of a witness; reliability involves the accuracy of the witness's testimony. Accuracy engages a consideration of the ability of the witness to observe, recall and recount. A witness who is not credible on a point cannot be reliable. The converse, however, is not true. A credible witness can nonetheless be unreliable (R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at paragraphs 41 and 42).

[61] Recently, the Supreme Court of Canada, in R. v. Kruk, 2024 SCC 7, reminded trial judges of their roles in assessing the credibility and reliability of witnesses, and made the following comments:

[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.

[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31; R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).

[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621). With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.

Assessing the Credibility of a Child Witness – The Law

[62] As I approach my analysis of the evidence of H.G. I must remind myself as well of the dicta of Lamer C.J.C., as he then was, at paragraph 47 in R. v. L.(D.O.) [1993] 4 S.C.R:

“In the case at hand, in the determination of what is fair, one must bear in mind the rights and the capabilities of children. As McLachlin J. recognized in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133 : "... it may be wrong to apply adult tests for credibility to the evidence of children". Wilson J. expressed a similar view in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, in reference to the appeal judge's treatment of the child witness' evidence:

. . . it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.” .

[63] Further, as observed by Juriansz, J.A. in R. v. J.J. B. [2013] ONCA 268 at para. 70:

“[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B. (G.), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:

[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”

[64] Similar to the assessment of credibility, I must disabuse myself of any notion of the inherent unreliability of a child witness’ evidence. As MacLachlin J. stated, as she then was, at para. 23 in R. v. W(R), [1992] 2 S.C.R. 122.

[65] In addressing the issue of police interviews with children, the Court in R. v. R.E.M., [2002] B.C.J. No. 185 (B.C.S.C.) at para. 41 held that it is preferable for police officers in s. 715.1 interviews to ask simple, open-ended questions. See also: R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.) at para. 55.

[66] In R. v. Hernandez-Lopez, 2020 BCCA 12 the British Columbia Court of Appeal noted at paras. 18-20 that:

[18] The excerpts of the Bala article cited by the judge do not contain any information that is not already generally known by any person who has contact with young children. The ideas contained in those excerpts must, of necessity, be part of the basic toolbox that any judge hearing a case involving child witnesses must employ.

[19] Indeed, if one parses the paragraphs quoted by the judge, it becomes apparent that the statements they contain are, for the most part, already reflected in judicial commentary and practice. The phenomenon of child witnesses being suggestible is well known. For example, this Court noted concerns with respect to the suggestibility of a child witness in R. v. Horswill, 2018 BCCA 148 at para. 49. The idea that repeated suggestions to a child can implant memories was referred to in R. v. E.A.L. (1998), 130 C.C.C. (3d) 438 (Ont. C.A.) (appeal dismissed R. v. Lance, [1999] 3 S.C.R. 658). Forensic interviews of children where sexual abuse is suspected must be conducted in such a way as to avoid this difficulty.

[20] The frequent inability of children to describe, with precision, the time and place of an event or even its details has been commented upon in numerous cases, among them R. v. F. (C.C.) at para. 47 and R. v. B. E.M. at para. 35, both of which were cited by the trial judge

[67] The above referenced article was outlined paragraph 9 of the Hernandez-Lopez decision:

[8] The judge recognized that the evidence of young children must be evaluated differently from the evidence of adults. He quoted from four authorities that discuss the special approach that should be taken to the evidence of children: R. v. E.(A.W.), [1993] 3 S.C.R. 155; R. v. L.(D.O.), [1993] 4 S.C.R. 419; R. v. F.(C.C.), [1997] 3 S.C.R. 1183; and R. v. B.E.M., 2010 BCCA 602. The portions of those cases that he cited also included references to R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. (W.R.), [1992] 2 S.C.R. 122. Finally, the judge referred to R. v. Ceal, 2012 BCCA 19.

[9] After referring to these cases, the judge discussed an article published in the Alberta Law Review. I quote his discussion in full:

[30] I also refer to Bala et al. “Judicial Assessment of the Credibility of Child Witnesses” (2005) 42 Alta. L. Rev. 995-1017 in which the learned authors refer to psychological research on child witnesses in addition to a review of Canadian legal authorities. Included in their publication are the following statements, which are apt in the case at bar:

13 A major concern with child witnesses is their potential suggestibility. As a result of repeated or misleading questions, the memory of a witness may become distorted. It is possible for a person who has been subjected to repeated, suggestive questioning to develop “memories” of events that did not in fact occur. While children, especially young children, are more suggestible than adults, there is great variation between individuals of the same age in suggestibility and in resistance to suggestion. There is a large body of experimental research about the suggestibility of children, as well as some research about the suggestibility of adults.

14 The way in which children are questioned can also greatly affect what they are able to communicate. Research studies reveal that children and adults generally provide more information in response to specific questions rather than to the open-ended questions that are typically posed during direct examinations of witnesses. Children, especially young children, may lack the cognitive capacity to provide meaningful and consistent answers to questions that involve frequency of events, time or size, or that require explanation of motive (why questions), though if asked they will usually try to answer. In addition, “yes or no” questions are problematic as children, especially young children, may have a bias to produce “yes” answers, and when asked such questions by unfamiliar adults, young children will rarely respond with “I don’t know”.

15 Children, especially young children, are socialized to provide responses to questions, even if they do not fully understand what is being asked. Children who are asked questions that they do not fully understand will usually attempt to provide an answer based on the parts of the question that they did understand, so that a child’s answer to a question may seem unresponsive or may even be misleading.

[68] I have kept these guiding words in mind when assessing the evidence in this matter.

Analysis

[69] The issues that need to be determined in this case, turn to a significant extent, on my credibility and reliability findings based on the testimony given by both the complainant and the accused. As a result, I intend on starting with an analysis on credibility.

Credibility of the Accused

[70] I find that the accused offered his evidence in a straightforward fashion.

[71] As I have often stated, it is perhaps more difficult to find inconsistencies, when the defence is one of straight denial. However, I found the accused to be responsive to the questions. He corrected himself when he remembered some additional details not previously provided.

[72] The Crown advanced that his evidence was devoid of common sense. In this regard, the Crown indicated that it did not stand to reason that the children would not get up during the night to seek the comfort of their parents’ bed.

[73] The accused was unequivocal on this issue. He stated that the children had a strict bedtime routine. They had a snack before going to bed. They did not get up for another snack. Other then C.M. who sometimes got up to use the washroom, once they were down, they were in bed for the night. He was also adamant that the children did not come into his bed. He was clear that they all would in the morning, but not during the night. Despite being cross-examined at length on this issue, his evidence remained the same.

[74] Even the evidence of H.G. aligns with his testimony. When asked whether it was common for her to go sleep with her parents, she indicated, that she thought it only happened once or twice. She also indicated, when asked whether it was normal that she did not remember waking up in the middle of the night, she confirmed that she did not think that she ever woke up in the middle of the night.

[75] The evidence of the accused does not defy common sense. Different households have varying routines. In this case, the accused stated that they had a strict one for bedtime. The children, for the most part, slept through the night. And the children slept in their own bed, not in their parents’ bed.

What weight should be given to H.G.’s Statement?

[76] DC Bradley starts the interview explaining to H.G. the process. As is often the case in these types of interviews, he then ascertains whether the child knows the difference between a lie and the truth.

[77] Subsequently, DC Bradley indicates to H.G. that she is to talk to him as though he does not know anything that has happened and to be as thorough as possible. He also advises H.G. if she does not feel like saying anything, that it is totally up to her.

[78] He then continues the interview with some basic questions and small talk on general information such as school and siblings. He moves on to why they are there. When questioned, H.G. indicates that she understands, and she is to give a statement about her dad. It is noted that it takes three separate questions to get this information. First, whether she knows why she is there, to which she answers “Yeah”. Second, she is asked why, to which she replies, “To make a statement”. Third, she is questioned regarding “what is the statement about”, and she responds, “My dad”.

[79] From this point, the following exchange occurs:

DC Bradley : Okay and do you want to tell me what you want to tell me about your dad. Are you comfortable though to talk about that and if you’re not, that’s totally fine.. you.. Do you want to talk about it? H.G.: Mhm DC Bradley : Yeah. Okay. Do you want me to tell you what I know.. okay.. so all.. so what I know is that about three years ago.. okay.. something happened when you were wanting to sleep in your dad’s bed. H.G.: Mhm DC Bradley : And that you ended up laying down beside him and he ended up.. uh.. touching you on your chest. H.G.: Mhm DC Bradley : Okay. Does that sound about right? Yeah? H.G.: Yeah

[80] Later in the interview the following exchange takes place:

DC Bradley : Okay, and did he just place his hand there or was he touching you.. uhm.. like on your breast area and stuff like that? H.G. : I.. uhm.. can’t remember.

[81] The above is the crux of the allegation in this matter. Essential information going to the very substance of the alleged offences is suggested to the complainant by Detective Bradley. All that H.G. does is agree with it. These questions are not only leading, but they are also suggestive of the most critical aspects of the alleged offences. There is a difference when leading questions are asked in relation to surrounding circumstances and collateral information. In this case, the allegations are laid out for H.G. She simply adopts them. I do recognize that she had the choice to agree or disagree with the proposition.

[82] These types of questions are effectively ‘spoon fed’ statements. They are unhelpful and dangerous when conducting child interviews. It has been stated that children are impressionable. They may often simply agree with suggestions made by adults, especially authority figures such as a police detective.

[83] These are not her words; they are his. Courts must be cautious when presented with such evidence.

[84] The jurisprudence indicates that the leading or suggestive nature of police questioning of a child complainant is a matter that impacts on the reliability of his or her evidence. It also impacts on the weight to be given to the evidence.

[85] In light of the foregoing, I can place little weight on H.G.’s Statement.

[86] I also find that the evidence of H.G. was extremely vague. She could not specify where on the chest she was touched. She stated that she was sleepy, drowsy and falling asleep. She recalls waking up in her bed, not knowing how she had returned to her bed. Her assumption was that her father had brought her back.

[87] It was also suggested in her evidence that there had been discussions with her mother. In this regard, her mother may have had some influence on H.G.’s evidence. It was certainly plausible that she took her mother’s memory, recounted to her, of the one instance where she woke up in different pyjamas, as an insinuation that her father had done something untoward on that occasion as well. She had no memory of this. It was simply an adoption of her mother’s recollection.

Evidence of N.F.

[88] N.F.’s evidence was offered more or so for the narrative. She provided details in relation to dates and familial circumstances.

[89] She minimized to a certain extent the conflict that existed between her and the accused, and the exposure of the children to the parental conflict.

[90] Other than offering some general and background information into the family dynamics, her testimony was not of a significant nature.

W.D. Analysis

[91] As stated above, I accept the evidence of the accused. On a pure application of the first branch of W.D. the accused should be acquitted.

[92] Even if I was not to accept the accused evidence, I would be left with reasonable doubt.

[93] Despite the foregoing, in the circumstances of this case, I find it necessary also to comment on the third branch of W.D. Even if I would have rejected the accused’s evidence, upon consideration of the whole of the evidence, for the reasons articulated above I would still have reasonable doubt based on the lack of cohesion and clarity to the complainant’s testimony, even when I make allowances for her tender age.

[94] I find troublesome the suggestive nature of the questions put to the complainant in her statement given to police and admitted into evidence under section 715.1 of the Code. Police should tread carefully when interviewing children and should refrain from using leading questions. In this case, it was more then just leading, the evidence was gifted to the complainant by DC Bradley. All that was left for her was to agree.

[95] In order to convict the accused, I must be convinced beyond a reasonable doubt of his guilt. Having reviewed all the evidence, I am not at all sure.

Conclusion

[96] In summary, I find that the Crown’s case falls well short of proving the allegations against the accused.

[97] Consequently, the accused is acquitted on both counts

Released: October 30, 2024 Signed: Justice C.M. Brochu